Rajasthan High Court - Jodhpur
Hindustan Zinc Limited vs State Of Raj. & Ors on 9 November, 2012
Equivalent citations: AIR 2013 (NOC) 289 (RAJ.)
Bench: Arun Mishra, Sangeet Lodha
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
(1). HINDUSTAN ZINC LIMITED VS. STATE OF RAJASTHAN & ORS.
Reportable (D.B.CIVIL WRIT PETITION NO.9994/10)
(2). M/S. INDUSTRIAL MINERAL SUPPLIERS VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO.3391/07)
(3). CHANDRA KUMAR KOCHAR VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO.4945/08)
(4). M/S. JAICHAND LAL DAGA VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 4946/08 )
(5). UMMED SINGH RATHORE VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 4947/08)
(6). M/S. SAMPAT LAL DAGA VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 4950/08)
(7). M/S. K.G. MINES & MINERALS VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 5070/08)
(8). SUNDER LAL DAGA VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 5071/08)
(9). M/S. TAHLA RAM & SONS VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 5072/08)
(10). SORABH CHANDANA VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 5073/08)
(11). M/S. ASHOK LEYLAND LIMITED VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 5182/09)
(12). HINDUSTAN ZINC LIMITED VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 11254/09)
(13). M/S. ASHOK LEYLAND VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 5089/10)
(14). M/S. ASHOK LEYLAND VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 5090/10)
(15). UMMED SINGH RATHORE VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 6050/10)
(16). M/S. K.G. MINES & MINERALS VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 6052/10)
(17). M/S. SANTA SALE CORPORATION VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 6053/10)
(18). M/S. JAICHAND LAL DAGA VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 6055/10)
(19). VIJAY KUMAR SHAMRA VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 6060/10)
(20). SUNDER LAL DAGA VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 6061/10)
(21). HINDUSTAN ZINC LIMITED VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 9995/10)
(22). HINDUSTAN ZINC LIMITED VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 144/11)
(23). HINDUSTAN ZINC LIMITED VS. STATE OF RAJASTHAN & ORS.
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(D.B.CIVIL WRIT PETITION NO. 148/11)
(24). HINDUSTAN ZINC LIMITED VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 150/11)
(25). M/S. ASHOK LEYLAND LIMITED VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 868/11)
(26). HINDUSTAN ZINC LIMITED VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 3008/11)
(27). M/S. ASHOK LEYLAND LIMITED VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 5475/11)
(28). SUZLON GUJARAT WIND PARK LTD. VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 6025/11)
(29). SYNEFRA ENGINEERING & CONSTRUCTION LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 6026/11)
(30). SARJAN INFRASTRUCTURE FINANCE LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 6027/11)
(31). SUZLON ENERGY LTD. VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 6028/11)
(32). VIJAY KUMAR SHARMA VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 7660/11)
(33). M/S. SAMPAT LAL DAGA VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 8344/11)
(34). UMMED SINGH RATHORE VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 8377/11)
(35). M/S. JAICHAND LAL DAGA VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 8382/11)
(36). CHANDRA KUMAR KOCHAR VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 8383/11)
(37). M/S. TAHLA RAM & SONS VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 8384/11)
(38). M/S SANTA SALE CORPORATION VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 8847/11)
(39). SUZLON ENERGY LIMITED VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 10951/11)
(40). SYNEFRA ENGINEER & CONSTRUCTION LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 11293/11)
(41). OIL & NATURAL GAS CORPORATION LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 12290/11)
(42). OIL & NATURAL GAS CORPORATION LTD.VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 12291/11 )
(43). OIL & NATURAL GAS CORPORATION LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 12292/11)
(44). OIL & NATURAL GAS CORPORATION LTD.VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 12293/11)
(45). SUZLON GUJARAT WIND PARK LTD. VS. STATE OF RAJASTHAN
& ORS.
(D.B.CIVIL WRIT PETITION NO. 12881/11)
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(46). SUZLON ENERGY LTD. VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 12882/11)
(47). M/S. KHETAN BUSINESS CORPORATION PRIVATE LTD. VS.
STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 12998/11)
(48). RAJ WEST POWER LIMITED VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 863/12)
(49). M/S. CHEMICAL LIME MUNDAWA PVT. LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 1144/12)
(50). SARJAN REALITIES LTD. VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 1315/12)
(51). AMBUJA CEMENTS LTD. VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 1817/12)
(52). BIRLA CEMENT WORKS VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 1917/12)
(53). M/S. SUZLON GUJARAT WIND PARK LTD., JAIPUR VS. STATE
OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 2132/12)
(54). SYNEFRA ENGINEERING & CONSTRUCTION LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 2133/12)
(55). SUZLON ENERGY LIMITED VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 2134/12)
(56). BARMER LIGNITE MINING COMPANY LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 2173/12)
(57). M/S. CALCIUM MINERALS VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 2243/12)
(58). M/S. SUZLON GUJARAT WIND PARK LTD., JAIPUR VS. STATE
OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 2405/12)
(59). SUZLON ENERGY LIMITED, AHMEDABAD VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 2436/12)
(60). M/S. ULTRA TECH CEMENT LTD. VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 2617/12)
(61). M/S. ULTRA TECH CEMENT LTD. VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 2618/12)
(62). ENERCON (INDIA) LTD. VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 2680/12)
(63). SYNEFRA ENGINEERING & CONSTRUCTION LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 2711/12)
(64). M/S. SALENE POWER INFRASTRUCTURE LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 2870/12)
(65). HINDUSTAN ZINC LIMITED VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 3024/12)
(66). M/S. ULTRATECH CEMENT LTD. VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 3364/12)
(67). M/S.ULTRA TECH CEMENT LTD. VS. STATE OF RAJASTHAN &
ORS.
(D.B.CIVIL WRIT PETITION NO. 3367/12)
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(68). M/S. BHOODAN & COMPANY VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 3787/12)
(69). M/S. ASHOK LEYLAND LIMITED VS.STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 4769/12)
(70). V.S. LIGNITE POWER PRIVATE LTD. VS. STATE OF RAJASTHAN
& ORS.
(D.B.CIVIL WRIT PETITION NO. 5012/12)
(71). M/S. SILVER SHADOW EXPORT PVT. LTD.VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 6854/12)
(72). SYNEFRA ENGINEERING & CONSTRUCTION LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 8040/12)
(73). M/S. SUZLON GUJARAT WIND PARK LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO. 8041/12)
(74) M/S. KHETAN BUSINESS CORPORATION PVT. LTD. VS. STATE OF
RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO.7993/08)
(75) SIGMA MINERALS LTD. VS. STATE OF RAJASTHAN & ORS.
(D.B.CIVIL WRIT PETITION NO.504/10)
Date of Judgment :- 9th November,2012.
HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA
HON'BLE MR.JUSTICE SANGEET LODHA
Mr. M.S.Singhvi, Senior Advocate assisted by
Mr. Vineet Dave & Akhilesh Rajpurohit )
Mr. B.L.Purohit &
Mr. J.L.Purohit, Senior Advocate assisted by
Mr. N.R.Budania & Rajeev Purohit )
Mr. D.R.Bhandari )
Mr. Ramit Mehta )
Mr. Digvijay Singh Jasol ) for the petitioners.
Mr. Arvind Shrimali )
Mr. Amit Dave )
Mr. B.M.Bohra )
Mr. Deen Dayal Purohit )
Mr. R.L.Jangid, Additional Advocate General assisted by
Mr. H.S.Bishnoi )
Mr. K.K.Bissa ) for the respondents.
BY THE COURT (PER HON'BLE MR.SANGEET LODHA,J.)
1. These writ petitions are directed against provisional/final assessment orders passed by the Assessing Authority creating demand of land tax against the petitioners under the provisions of Rajasthan Finance Act, 2006 (for short 'the Act'). 5 The vires of Rule 2(h) and Rule 24(1) & (2) of the Rajasthan Land Tax Rules, 2006 (for short 'the Rules') is also under challenge. Besides, in the Writ Petition No.6854/12, there is challenge to vires of Section 38(d) & Section 39 of the Act as well.
2. The State Legislature enacted the Act inter alia to provide for levy of tax on land in the State of Rajasthan, which has come into force w.e.f. 31.3.06. The "land" which is covered for imposition of tax under the Act stands defined by Section 38(c) of the Act. The definition of 'land' has been couched in negative terms inasmuch as it excludes from its ambit the land held or used exclusively for agricultural or residential purpose or an urban land as defined in Rajasthan Land and Building Tax Act, 1964 or an abadi land as defined in clause (b) of Section 103 of the Rajasthan Land Revenue Act, 1956. Obviously, all lands except the land specifically excluded from the purview of levy of land tax are liable to be taxed under the Act. The land holders, who are liable to pay the land tax has been defined under Section 38(d) to mean, a person who holds or uses the land as its owner, tenant, lessee, licensee, grantee or under any right or contract or in any other capacity. As per provisions of Section 39 of the Act, tax is leviable on such classes of land at such rates for each year, as may be specified by the State Government from time 6 to time by notification in Official Gazette. However, as per first proviso to Section 39, the rate of tax under the said section shall not exceed ten percent of the market value of the land. Second proviso to Section 39 excludes certain specified categories of the land from levy or collection of tax.
3. The procedure for provisional and final assessment has been laid down under Section 40 to 43 of the Act. As per scheme of the Act in the first instance a provisional assessment list of all lands liable to pay the tax shall be prepared or cause to be prepared by the Assessing Authority. After preparation of provisional assessment list, the Assessing Authority is required to give a public notice inviting land holders of the land mentioned in the list to inspect the same or to take extract therefrom. Any person aggrieved by any entry in the provisional list or by insertion therein or omission therefrom of any matter or otherwise with respect to the list is entitled to file objection in respect thereof before the Assessing Authority within a period of thirty days from the date on which the list is made available for inspection, however, the Assessing Authority on sufficient cause been shown may entertain the objections filed by an objector beyond thirty days of the date of receipt of the demand notice under the provisions of sub-section (2) of Section 47 of the Act.
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4. The petitioners, land holders are aggrieved by the provisional/final assessments made by the Assessing Authority under the provisions of the Act and the demand notices issued pursuant thereto. The challenge is made on various grounds such as that the petitioners are not amenable to land tax for the reason that the land held by them is not covered by the definition of the 'land' incorporated under Section 2(c) of the Act, they are not 'land holders' within the meaning of Section 2(d) of the Act and further that the land held by them stands excluded from the liability of tax by virtue of Second proviso to Section 39 of the Act. The assessment of the tax on the basis of market value of the land held by the petitioners for mining purposes is also questioned. In all the petitions filed, the validity of Rule 24(1) of the Rules, which provides for assessment of market value of the land on the basis of rates recommended by the District Level Committee (DLC) or the rates approved by Inspector General, Registration and Stamps (IG R&S), from time to time, whichever is higher is also under challenge. The validity of final assessment orders/demand notices is also questioned on the ground that before passing the assessment order/creating the demands, no opportunity of hearing was afforded to the petitioners-assessees and the same suffers from non-application of mind.
5. The contentions of the learned counsel for the parties 8 roll round the provisions of Sections 38(c) & (d), 39, 40 to 42, 45, 48 of the Act and Rule 24 of the Rules, which may be beneficially quoted :
"38(c) "land" shall not include the land held or used exclusively for agricultural or residential purpose or an urban land as defined in the Rajasthan Land and Building Tax Act 1964 (Act No.18 of 1964) or an abadi land as defined in clause (b) of section 103 of the Rajasthan Land Revenue Act, 1956 (Act No.15 of 1956);
38(d) "land holder" means a person who holds or uses the land as its owner, tenant, lessee, licensee, grantee or under any right or contract or in any other capacity;
39. Levy of tax and its rate.- Subject to other provisions of this Chapter, there shall be levied and collected for each year a tax on such classes of land at such rates, as may be specified by the State Government from time to time by notification in the official Gazette:
Provided that the rate of tax under this section shall not exceed ten percent of the market value of the land:
Provided further that no tax shall be levied or collected on the land-
(a) Owned by -
(i) the Central Government; or
(ii)the State Government or a local authority except where such land or a right connected therewith is leased out otherwise given for its use to any person,institution or corporation etc on payment or without 9 payment; or
(b) held or used -
(i) as a wakf property;
(ii) by the Devasthan Department of
the State Government;
(iii) for public worship or public purpose;
(iv) for purposes connected with the disposal of dead bodies;
(v) by an educational institution solely for purpose of education; or
(vi) for public parks, public libraries or public museums.
40. Preparation of the provisional assessment list.-
(1) The Assessing Authority shall prepare or cause to be prepared, in such manner and containing such particulars as may be prescribed, a provisional assessment list of all lands liable to pay the tax. (2) The assessing Authority Shall, in preparing the list, determine the taxable value of, and the amount of the tax to be assessed on, all lands liable to pay the tax and same shall be duly shown in the list.
(3) When the provisional assessment list has been prepared the Assessing Authority shall give public notice of the same in such manner and containing such particulars as may be prescribed, and every persons claiming to be the land holder of the land mentioned in the list shall be at liberty to inspect the same and to take extracts therefrom without payment of any charge.
41. Objection to the entries in the list.- Any person aggrieved by any entry in the provisional assessment 10 list, or by the insertion therein or omission therefrom of any matter, or otherwise with respect to the list, may within a period of thirty days from the date on which the list is made available for inspection under sub-section (3) of Section 4, file objection in respect thereof before the Assessing Authority:
Provided that the Assessing Authority may, where he is satisfied that the objector was prevented for sufficient cause from filing the objection within the aforesaid period, entertain an objection filed beyond the said period, but not beyond thirty days of the date of receipt of demand notice under sub-section (2) of section 47.
42. Finalisation of the assessment list.- (1) Where no objection in respect of the land mentioned in the provisional assessment list, is filed in accordance with the provisions of section 41, the entries in respect of such land in the list shall be taken as final.
(2) Where an objection in respect of the land mentioned in the provisional assessment list is filed in accordance with the provision of section 5, the Assessing Authority shall, after affording an opportunity of being heard and producing evidence to the objector, decide the objections and confirm, revise or modified the entries in the provisional assessment list in respect of such land.
(3) The provisional assessment list shall there upon be duly authenticated by the Assessing Authority and, subject to any amendment, addition correction or modification made under section 43 or section 44 or as a result of any appeal under section 48, for any revision under section 51, as the case may be, take as final. The 11 list as finalized shall be published and made available for public inspection, in such manner as may be prescribed.
(4) The list so finalized shall, subject to any amendment, addition, correction or modification made under section 43 or section 44, or as a result of any appeal under section 48, or of any revision under section 51, as the case may be take effect and come into force with effect from 1st day of April following the date on which it has been finalized and shall remain in force till such time as a new list has been prepared and has come into force:
Provided that the list finalized for the first time after the enforcement of this Chapter shall take effect and be deemed to have come into force with effect from such date as may be notified by the State Government in the Official Gazette.
(5) The Assessing Authority may, in any manner laid down in section 40, 41 and sub-section (1) to (4) of this section, prepare a new list in every five or even earlier provided that the State Government so desires.
45. Conclusiveness of entries in the list.- An entry in an assessment list, in respect of any land mentioned therein, shall, for the period the list is or has been in force, the conclusive proof for any purpose connected with the tax.
48. Appeals.- (1) Any person aggrieved by an order under section 42, 43 or 44, may at any time before the expiry of thirty days from the date of the order prefer an appeal to the Appellate Authority:
Provided that no appeal shall be entertained unless 12 it is accompanied by satisfactory proof of payment of not less than one half of tax assessed and payable by the person preferring the appeal.
(2) The Appellate Authority may admit an appeal after the expiry of the period referred to in sub-section (1), if he is satisfied that there was sufficient cause for to not preferring the appeal within that period.
(3) Every appeal under this section shall be presented and verified in the manner prescribed.
(4) The Appellate Authority shall, after affording an opportunity of being heard to the Appellant, pass such order on the appeal as its thinks fit and shall sent a copy of the order to the Assessing Authority and such other persons as may be prescribed.
(5) The assessment list shall, where necessary, be modified in accordance with the decision of the Appellate Authority.
Rule 24 of the Rules
24. Procedure for assessment of the market value of the land.-
(1) The market value of land shall be assessed by the Assessing Authority on the basis of the rates recommended by the District Level Committee or the rates approved by the Inspector General, Registration and Stamps from time to time, whichever is higher. (2) If the rates of land recommended by the District Level Committee are not revised within one year from the date of such recommendation or if the market value of land in any area has extra ordinarily increased or decreased, the State Government suo moto or on a 13 reference made by the Inspector General, Registration and Stamps redetermine by order the rates of the land in such areas on the basis of the recommendations made by a committee consisting of Secretary Finance as Chairman and Inspector General, Registration and Stamp, Dy. Secretary Finance (Tax), Collector of concerned District and a Public Representative of that District nominated by the Government as member. The rates so determined shall be the basis of assessment of the market value of the land with effect from the date specified in such order and be valid until the District Level Committee revises the rates so determined."
6. Mr. M.S. Singhvi, Senior Advocate contended that Rule 24 of the Rules is ultra vires, powers of State Government inasmuch as it travels beyond the scope of charging section i.e. Section 39 of the Act. It is submitted that proviso to Section 39 limits the rate of tax upto ten percent of market value of the land, however, by Rule 24 of the Rules it is mandated the market value of the land shall be assessed by the Assessing Authority on the basis of the rates recommended by DLC or the rates approved by IG R&S from time to time, whichever is higher. It is submitted that there is no mandate of the legislature that the land tax is to be charged on market value alone and, therefore, by way of subordinate legislation the State Government cannot make a mandatory provision for assessment of the land tax on the 14 basis of the market value of the land alone. That apart, it is submitted that since the Act does not provide for assessment of the market value of the land on the basis of the rates determined by the DLC or approved by IG R&S and, therefore, Rule 24 of the Rules which enlarges the scope of provisions of Section 39 of the Act is ultra vires powers of the State Government.
7. Learned counsel contended that the petitioners are holding the land for mining purposes on lease hold basis which are generally of duration of twenty years or less. It is submitted that as per entry no.33(a)(ii) of the Schedule appended to the Rajasthan Stamp Act, 1998, where the land is held on lease hold basis and lease is for a period up to twenty years, the stamp duty is charged for a consideration equivalent to the amount or value of average rent of two years. It is submitted that DLC constituted under Rule 2(b) of the Rajasthan Stamp Rules, 2004 or the IG R&S has no occasion to recommend the market value of the land held for mining purposes. It is submitted that where the land held for mining purposes is large in volume as in the case of Electricity Generation Company and Oil Production Company, the volume of land being large and rights being of lease hold basis for excavation of mineral having expression of crude, the market value of the land cannot constitute criteria for levy of 15 land tax on mineral bearing lands. It is submitted that the volume of the land being large and till the excavation reaches a particular part of the land, it is being used for agriculture or other purposes and, therefore, levy of land tax on market value for mineral bearing land, by making reference to Rule 24 is highly arbitrary and unreasonable.
8. It is next contended by the learned counsel Mr. M.S. Singhvi that sub clause (iii) to clause (b) of proviso to Section 39 categorically states that no land tax shall be levied or collected on the land held or used for public purpose. Learned counsel urged that so far as the land held and used by Oil Production Companies and Power Generation Company are concerned, the same are held as well as used for public purposes. It is submitted that the lands held by the said companies were acquired by the State Government by resorting to the provisions of Land Acquisition Act, 1894 ('the Act of 1894'), and notification issued under Section 4 of the Act of 1894 in respect of said companies categorically recites that the land is being acquired for public purpose i.e. for generation of electricity and exploration of crude oil. Accordingly, it is submitted that there being specific exclusion of the lands held for public purposes from levy of land tax, the proceeding initiated by the Assessing Authority for levy of land tax against the said companies are ex facie without 16 jurisdiction. In support of his contentions, learned counsel has relied upon decisions of the Hon'ble Supreme Court in the matters of Pratibha Nema & Ors. v. State of M.P. & Ors. (2003) 10 SCC, 626, The State of Karnataka & Anr. v. Shri Ranganatha Reddy & Anr.,(1977) 4 SCC 471,Fomento Resorts and Hotels Limited & Anr. v. Minguel Martins & Ors., (2009) 3 SCC 571 and Soora Ram Pratap Reddy & Ors. vs. District Collector, Ranga Reddy District & Ors., (2008) 9 SCC, 552.
9. Learned counsel submitted that even otherwise the provisions incorporated exempting certain categories of the land from levy of tax has to be construed liberally. In support of his contention, learned counsel has placed reliance on the decisions of Hon'ble Supreme Court in "Bombay Chemical(P) Ltd v. Collector of Central Aexcise, Bombay I, Bombay", 1995 (Suppl)2 SCC 646, "G.P.Ceramics Private Limited v. Commissioner, Trade Tax, Uttar Pradesh", (2009) 2 SCC 90 and "Mineral Area Development Authority v. Steel Authority of India", (2011) 4 SCC 450. Learned counsel submitted that the contention of the petitioners further stands fortified from the fact that the State Government issued a notification dated 5.5.10, directing remission of stamp duty payable by the petitioner-Raj West Power Limited on all instruments and security documents, instrument executed for acquisition or purchase of the land for setting up of thermal power plant and 17 instrument relating to the land allotted for the purposes of mining of lignite.
10. Lastly, learned counsel submitted that the mineral bearing land owned and possessed by the Khatedars or covered by abadi land, ways, Nadi, Gochar etc. cannot be subjected to levy of land tax under the provisions of the Act and, therefore, the land tax assessed by the Assessing Authority ignoring these aspects of the matter is contrary to the provisions of Section 38(c) of the Act.
11. Mr. B.L. Purohit, Senior Advocate submitted that the provisions of Rule 24(1) of the Rules, directing the Assessing Authority to assess the market value of the land for the purposes of levy of land tax on the basis of DLC rates is illegal, arbitrary and ultra vires, the provisions of the Act and falls foul of Article 14 and 19(1)(g) of the Constitution of India. Learned counsel submitted that the principle of harmonious construction applied by the Hon'ble Supreme Court in Satyam Properties's case is not applicable to the instant case even if Rule 24(1) is interpreted to mean that the Assessing Authority is not bound to accept the DLC rates.
12. Learned counsel contended that Chapter VII of the Act creates liability for tax against the land holders whereas the petitioners are holding the land as mining lease holder and the right conferred by the lease executed in their favour is 18 right in sub soil area mentioned in the lease with no right over surface area of the land and, therefore, the petitioners being not covered by definition of 'land holder' in terms of Section 38(d) of the Act, cannot be held liable for payment of land tax. In support of his contentions, learned counsel has relied upon decisions of the Hon'ble Supreme Court in the matter of "A.V.Fernandez v. The State of Kerala", AIR 1957 SC 657, "K.Thippanna v. Varalakshmi", (2012) 3 SCC 576.
13. Learned counsel submitted that the Assessing Authority has assessed the tax on the basis of market value of surface area of the agriculture or residential land as suggested by DLC appointed under the Stamp Act, which is irrelevant for assessing market rates of sub soil areas. Learned counsel submitted that as a matter of fact before assessing the market value of the land, the Assessing Authority was required to first decide the question whether the lands of which the market value is to be determined is marketable, since determination of market value implies that land is marketable. In this regard,learned counsel has relied upon decisions of the Hon'ble Supreme Court in the matter of "M/s. Indian Cable Company Ltd. v. Collector of Central Excise, Calcutta & Ors.", AIR 1995 SC 64, "A.P.State Electricity Board vs. Collector of Central Excise, Hyderabad", 1994 (1) JT (SC)
545. 19
14. Learned counsel submitted that the demand has been created by the Assessing Authority in gross violation of principles of natural justice inasmuch as after publishing the provisional assessment list, the objections raised by the petitioners have been rejected without giving an opportunity of hearing and, therefore, the impugned assessment orders/demands deserves to be quashed and set aside for this reason alone.
15. Learned counsel Mr. Dalpat Raj Bhandari appearing for petitioner-M/s Silver Shadow Export Private Limited, while adopting the contentions raised by the learned counsel Mr. M.S. Singhvi and Mr. B.L. Purohit further submitted that the provisions of Section 38(c) & 39 of the Act are beyond the legislative competence of the State Legislature under entry no.49 of the list II of VII Schedule of the Constitution of India. It is submitted that the tax imposed under the Act puts unreasonable restriction and hampers the business/ occupation of the petitioner and, therefore, the same is violative of Article 19(1)(g) of the Constitution of India. It is submitted that the rate of tax must be fixed under the Act and not under the rule making power and, therefore, while incorporating Section 39 of the Act, which makes provision for levy of land tax revisable every year but does not provide for the rate of tax, the Legislature has failed to discharge its 20 duty in making law appropriately.
16. Mr. Ramit Mehta, learned counsel while adopting the arguments advanced by Mr. M.S.Singhvi and Mr. B.L.Purohit, Senior Advocates, submitted that despite this court remanding the matters to the Assessing Authorities to frame fresh assessment orders after providing opportunity of hearing to the concerned assessees, keeping in view the provisions of the Act, again the final assessment orders have been passed by the Assessing Authorities, in a slip shod manner, without affording an opportunity of hearing to the concerned assessees. Learned counsel submitted that as laid down by a Bench of this court in the matter of "Janak Raj & Ors. vs. State of Rajasthan & Ors.", 2010(3) WLC, 469, the assessment of the rate by DLC cannot be treated conclusive proof of market value of the land.
17. All other learned counsel appearing for other respective petitioners have adopted the arguments advanced by Mr. M.S. Singhvi and Mr. B.L. Purohit, Senior Advocates.
18. On the other hand, Mr. R.L.Jangid, Additional Advocate General submitted that the question with regard to vires of the provisions of the Act and the Rules made thereunder stands set at rest by a Bench decision of this Court in GKW Ltd.'s case (supra), and therefore, the petitioners cannot be permitted to question the validity thereof all over again on 21 any additional ground. Learned AAG submitted that as per provisions of Section 39 of the Act, the tax on the land as defined under Section 38 (c) of the Act shall be levied and collected for each year at such rate, as may be specified by the State Government from time to time by notification in Official Gazette, but, as per proviso to Section 39, rate of tax under the said section shall not exceed ten percent of the market value of the land and therefore, it goes without saying that the rate of tax may be notified by the State Government for the assessment of the tax on the basis of market value of the land as well. Learned AAG submitted that for the assessment of the market value for the purpose of levy of tax, it is always open to adopt a rational basis and therefore, Rule 24 of the Rules which makes the provision for assessment of the market value of the land on the basis of the rates approved by DLC or the rates approved by the IG R&S from time to time whichever is higher cannot be said to be illegal or arbitrary. Learned AAG submitted that since the tax is permissible to be assessed under the provisions of the Act on the market value of the land and therefore, Rule 24 of the Rules as framed, in no manner travels beyond the scope of provisions of Section 39 of the Act. Learned AAG submitted that the DLC stands defined by Rule 2 (b) of Rajasthan Stamp Rules, 1955 ("the Rules of 1955") and the procedure for 22 assessment of the market value of the property has been prescribed under Rule 59 (B) of the Rules of 1955. It is submitted that Rule 59 (B) of the Rules of 1955 was struck down by this Court vide the decision rendered in the matter of "Satyam Properties V. State" [2002 (2) RLR 722], however, the said decision of this Court stands set aside by the Hon'ble Supreme Court vide order dated 29.7.10 passed in the matter of "State of Rajasthan & Ors. vs. Satyam Properties" (Civil Appeal No.3671-3684 of 2003) observing that the provisions of Rule 59 (B) of the Rules of 1955 could be reconciled with the provisions of Section 47 (A) of the Rajasthan Stamp Act, 1899 by adopting the principle of harmonious construction. Learned AAG submitted that in view of the decision of the Hon'ble Supreme Court as aforesaid, the vires of a pari materia provision, rather the provision which is relevant for the assessment of market value of the land for the purpose of levy of tax under the Act stands upheld and therefore, the petitioners' challenge to the vires of the provisions of Rule 24 (1) of the Rules also does not survive for consideration of this Court. Learned AAG submitted that the Hon'ble Supreme Court in the matter of Satyam Properties opined that it is not mandatory for the Registering Officer to necessarily accept in each and every case the recommendation of the DLC and in appropriate cases, he can disagree with the assessment of the 23 DLC. Learned AAG submitted that the rates of the land recommended by DLC are revisable and liable to be increased or decreased as per provisions of Sub Rule (2) of Rule 24 of the Rules and therefore, by no stretch of imagination, the provisions incorporated under Rule 24 of the Rules can be said to be violative of Article 14 and 19 (1) (g) of the Constitution of India. Learned AAG drawing our attention to a Bench decision of this Court dated 4.1.01 rendered in the matter of "Vijay Raj and Ors. Vs. State of Rajsthan and Ors." submitted that the pari materia provision incorporated by way of Rule 58 of the Rajasthan Stamp Rules, 2004 also stands upheld. Learned AAG submitted that against the provisional assessment list, the assessees have right to file objections before the Assessing Authority and the final assessment order is appealable and therefore, there is absolutely no reason as to why the petitioners should be permitted to invoke extra ordinary jurisdiction of this court under Article 226 of the Constitution of India.
19. Replying the arguments of learned counsel Mr.M.S.Singhvi, regarding the land being held by the petitioners Oil India Corporation Limited and the Raj West Power Limited for the public purpose, learned AAG submitted that sub-clause (iii) of Clause (b) of second proviso to Section 39 refers to the "public purpose" related with the religious 24 philanthropic and social purposes and it has no relation to the land held and used for mining and industrial purposes. In support of his contention, learned AAG has relied upon the decisions of the Hon'ble Supreme Court in "H.P.Barua & Ors. v. The State of Assam & Ors.", AIR 1961 SC 232, "Jagir Singh & Ors. vs. State of Bihar & Anr.", AIR 1976 SC 997, "Vemareddy Kumaraswamy Reddy & Anr. v. State of A.P.", 2006 (2) SCC 670. Lastly, learned AAG submitted that against the provisional assessment list, the petitioners have right to file objections before the assessing authority, and against the final assessment order, the remedy of appeal is available to them under Section 48 of the Act and therefore, there is absolutely no reason as to why the petitioners should be permitted to invoke extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India.
20. Replying the arguments advanced by learned AAG, Mr. M.S.Singhvi, learned counsel submitted that where there is violation of the principle of natural justice, the aggrieved person can always invoke extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. It is submitted that the remedy of appeal provided under Section 48 is not an efficacious alternative remedy inasmuch as under
the said provision, no appeal can be entertained unless it is accompanied by proof of payment of not less than one half of 25 the tax assessed and payable by person preferring the appeal.
Learned counsel urged that the provision of appeal incorporated being onerous, the petitioners cannot be non-
suited on the ground of availability of remedy of appeal under the relevant statute. In support of his contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Executive Engineer, Southern Electricity Supply Company of Orissa Limited(Southco) v. Sri Seetaram Rice Mills, (2012) 2 SCC, 108.
21. We have considered the rival submissions, perused the material on record and gone through the decisions cited at the Bar.
22. The levy of the land tax in the State of Rajasthan has been a matter of litigation between the assesses and the State for last more than two decades and, therefore, so as to appreciate the controversy raised in these matters, a brief reference to the history of legislation imposing land tax and the previous litigation which had travelled right upto the Hon'ble Supreme Court would be appropriate.
23. In the first instance in the year 1985, the State Legislature enacted Rajasthan Land Tax Act, 1985 ('Act of 1985'), which came into force w.e.f. 31.7.85, to provide for imposition of tax on land in areas other than urban areas in the State of Rajasthan and the matters incidental thereto. The 26 legislation as aforesaid was brought with the objects and reasons that the land situate in areas other than urban areas in the State of Rajasthan are extensively being made use of for the purpose of excavating or extracting ores or minerals, for growing, collecting or receiving forest or horticultural produce or for industrial or commercial purpose. As per Section 3 of the Act of 1985, every land holder was liable to pay tax under the said Act on the annual value of the land for every year or as the case may be, part thereof during which such land was held or used by him. The lands covered for levy of land tax as defined under Section 2(g) of the Act of 1985, were the land held or used for (i) excavating, extracting, removing or utilising any ore or mineral, (ii) growing, collecting or receiving any forest or horticultural produce; (iii) any industrial or commercial purpose of (iv) any other purpose, but excluding the land held or used exclusively for agricultural or residential purpose or a land situated in an urban area or in a notified area declared as such under Section 313 of the Rajasthan Municipalities Act, 1959 (Rajasthan Act 38 of 1959) or an abadi land as defined in Clause (b) of Section 103 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956). Section 5 of the Act of 1985 dealing with the rate of tax provided that the tax payable by a land holder shall be assessed at such rate not exceeding fifty 27 percent of the annual value, as may be specified by the State Government from time to time by notification in Official Gazette and different rates may be specified for land held or used for different purposes.
24. The vires of Act of 1985 was challenged by the mining lease holders inter alia on the grounds that so far as it imposes tax on land held for carrying on mining operations is unconstitutional being beyond the legislative power of the State inasmuch as the field has been taken over by the Parliament by declaration made under Section 2 of the Central Act. It was further contended that the tax, duty or royalty on mineral and the Act has been framed by the State Legislature in colourable exercise of the power inasmuch as it has no power to impose tax on the production or excavation of mineral. The validity of the Act was upheld by this Court by a decision rendered in the matter of 'Mangalam Cement Ltd. v.
State of Rajathan and Anr.' AIR 1987 Raj. 186. The matter was taken in appeal before the Hon'ble Supreme Court which in its turn by its decision in the matter of 'Federation of Mining Association of Rajasthan v. State of Rajasthan', AIR 1992 SC 103, declared the enactment insofar as it purports to levy of tax on mineral bearing lands as ultra vires. Relying upon the earlier decision rendered in the matter of 'Orissa Cement Limited v. State of Orissa' AIR 1991 SC 1676, the 28 Hon'ble Supreme Court held that the State Legislature did not have the competence to legislate for levy of tax on mineral bearing lands based on royalty derived from the land. It was contended on behalf of the State before the Apex Court that even if tax based on royalty amount is held to be not a tax within the competence of the State Government, it is possible to sever that portion of legislation and uphold the validity of the levy based on the rent. The Hon'ble Supreme Court opined that the dead rent payable is royalty inasmuch as it has been defined under the relevant statute as "the minimum guaranteed amount of royalty payable to the Government". That apart, the court observed that the reference to "royalty" or "dead rent" whichever is higher as the basis for the tax shows that the State Legislature has contemplated a single integrated scheme in which both are taken into account and compared and accordingly, the Hon'ble Supreme Court held that it is not possible to sever valid and invalid portion of the legislation as suggested on behalf of the State Government and therefore, the enactment to the extent indicated above was held to be ultra vires.
25. The Act of 1985 now stands repealed by virtue of provisions of Section 63 of the Act, which as noticed above provides for a new scheme for levy of tax on land in the State of Rajasthan. The vires of the Act and the Rules made 29 thereunder was questioned before this Court in "GKW Limited and Another v. State of Rajasthan & other connected matters", [2008 (3) WLC (Raj.)162]. It was contended on behalf of the petitioners therein that a similar enactment i.e. the Act of 1985 having been already struck down by the Hon'ble Apex Court in Federation of Mining Association's case (supra), the State Legislature was not competent to bring similar legislation with the same intention to impose tax on minerals. It was contended that the Act is beyond the legislative competence of the State Legislature by virtue of entry 49 of list II of Schedule VII of the Constitution of India. It was contended that imposition of tax on minerals by the State Legislature is not permissible due to limitation provided under entry no.23 and 50 of the list II of Schedule VII of the Constitution and in view of Central Legislation of Mines and Mineral (Development and Regulation) Act, 1957. After due consideration of the rival submissions, a Bench of this Court held that since the Act of 2006 does not make a reference regarding imposition of tax on royalty or dead rent, rather provides for tax on the land, hence it cannot be said that the imposition of tax is on the minerals, only for the reason that while providing the definition of "land", agriculture, urban and residential lands have been excluded. The court observed that mere exclusion of other category of land cannot mean that it 30 is a taxation on minerals, because neither the provision of the Act, nor Rules made thereunder shows that basis for the imposition of the tax is the royalty or dead rent so as to relate such imposition with minerals as was otherwise existing in the previous enactment of 1985 and therefore, the contention that it is again a tax on mineral, was not accepted. The Court further observed that irrespective of the excavation of minerals and payment of dead rent or royalty in terms of the provisions of the Act, tax is payable by the "land holder" as defined in the Act of 2006, thus, the enactment under challenge having no co-relation with even excavation of the mineral, cannot be said to be tax on mineral. While dealing with the question raised that if the tax was to be imposed on the land, it could be imposed only on the person owning the land, whereas under the Act, the tax purports to be levied even on license or lessee or even on occupier of the land, the Court opined that the ownership is a bundle of things and the person who is given right to occupy the land in whatever capacity does possess some spice of that big genus of ownership and therefore, on this count the tax cannot be declared invalid. Accordingly, this Court held that the State Government is having legislative competence for enactment of Chapter-VII of the Act and the Rules framed thereunder, therefore, the same cannot be held to be ultravires. 31
26. Suffice it to say that the vires of the Act and the Rules framed thereunder having been upheld by a Coordinate Bench of this Court as aforesaid, the petitioners cannot be permitted to question the vires of the provisions of the Act and the Rules all over again even on the additional ground. It is settled law that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent [ vide Ambika Prasad Mishra v. State of U.P., 1980(3) SCC, 719]. It is equally well settled that if an enactment is held to be intra vires, it is presumed that the validity of the enactment stands examined by the court on all aspects of the matter and the question with regard to vires cannot be reopened on any additional or new grounds and therefore, in considered opinion of this court, the vires of the provisions of the Act and the Rules generally having been upheld by this court in GKW Limited's case (supra), the petitioners cannot be permitted to rechallenge the same.
27. But then, the fact remains that in GKW Limited's case (supra), while upholding the vires of the Act and the Rules framed, the vires of any specific rule being ultra vires the provisions of the Act, was not questioned and therefore, the Coordinate Bench had no occasion to examine the vires of Rule 24 of the Rules as such, which is under challenge in the present writ petitions. In this view of the matter, we consider 32 it appropriate to examine the questions raised regarding the provisions of Rule 24 (1) of the Rules being ultra vires, the provisions of the Act.
28. Indisputably, as per the charging section i.e. Section 39 of the Act, the tax on classes of land covered by the definition of the land as incorporated in Section 38(c) of the Act, shall be levied at such rates, as may be specified by the State Government from time to time in the Official Gazette. It is true that the main provision of Section 39 does not specify the basis for the rates of the tax to be notified, but then, first proviso to Section 39 specifically provides that the rate of tax under the said section shall not exceed ten percent of the market value of the land. Thus, the conjoint reading of main provision of Section 39 and first proviso thereto makes it abundantly clear that apart from any other rational basis for providing the rate of tax, it is permissible to levy the tax at the rate specified by the State Government on the market value of the land. It is true that it is not the legislative mandate that the land tax under the Act is to be charged on the market value alone but then, the levy of tax on the basis of the market value of the land is permissible rather, specifically recognised under the Act and therefore, by no stretch of imagination, it can be said that while providing for the levy of land tax on the basis of the market value of the 33 land by way of Rule 24(1) of the Rules, the State Government has travelled beyond the scope of provisions of Section 39 of the Act, in any manner.
29. Obviously, when the rate of tax is notified by the State Government on the market value of the land, some rational method has to be adopted by the Assessing Authority to assess the market value of the land subjected to tax. As per Rule 24(1) of the Rules the market value of the land shall be assessed by the Assessing Authority on the basis of the rates recommended by the DLC or the rates approved by the IG R&S from time to time whichever is higher. The DLC has been defined to mean the committee constituted by the State Government for a district, from time to time under Rajasthan Stamp Rules, 2004, for the purpose of determining the market value of the land. As laid down by a Coordinate Bench of this Court in GKW Limited's case (supra), the tax imposed under the Act is essentially the tax on the land and, therefore, for assessment of the market value of the land, the provision made by incorporation in terms of the provisions of Rule 24 of the Rules, applying the rates recommended by the DLC under the provisions of Rajasthan Stamp Rules, 2004, cannot be faulted with.
30. The contention of the learned counsel for the petitioners that the stamp duty on the mining lease granted for a period 34 upto twenty years is payable in terms of provisions of Rajasthan Stamp Act, 1998 on a consideration equivalent to the amount or value of average rent of two years and therefore, the DLC constituted under Rule 2(b) of Rajasthan Stamp Rules, 2004 or the IG R&S have no occasion to recommend the market value of the land held for mining purposes, is also devoid of any merit. The fact that the land subjected to tax is a mineral bearing land may be relevant for assessing its market value but then, on that account the criteria laid down for assessement of market value of the land on the basis of the DLC rate notified cannot be held to be illegal or arbitrary. It is pertinent to note that before framing of the Rajasthan Stamp Rules, 2004, the procedure for assessment of market value of immovable property by Registering Officer for the purpose of levy of stamp duty was governed by Rule 59B of the Rajasthan Stamp Rules, 1955 ("Rules of 1955"). The validity of the said Rule was assailed before this court in the matter of "Satyam Properties's case (supra), wherein Rule 59B of the Rules of 1955 was held to be ultra vires Section 47 A(2) of the Indian Stamp Act, 1899 as adapted in Rajasthan under the Rajasthan Stamp Law (Adaptation) Act, 1952. However, the matter was taken in appeal (Civil Appeal No.3671-3684 of 2003 "State of Rajasthan v. Satyam Properties") before the Hon'ble Supreme 35 Court. The Hon'ble Supreme Court allowed the appeal filed by the State of Rajasthan and while setting aside the decision of this court, declared Rule 59B of the Rules of 1955 as intra vires. The order passed by the Hon'ble Supreme Court reads as under:
" Heard the learned counsel for the appellants. Although the respondent has been duly served, none appeared therefor.
The short question in this case is whether Rule 59(B) of the Rajasthan Stamp Rules, 1955 ( for short 'the Rules') is ultra vires Section 47A of the Rajasthan Stamp Act, 1899( for short 'the Act').
The High Court has held Rule 59(B) of the Rules to be ultra vires and hence, this Appeal.
Rule 59(B) of the Rules reads as under:-
"59(B) Procedure for assessment of the market value of the property by the Registering Officer-(1) In the case of an instrument relating to immovable property, the market value of land shall be assessed by the Registering Officer on the basis of the rates recommended by the District Level Committee constituted under Rule 2(j) from time to time ordered the rates approved by the Inspector General of Stamps from time to time, whichever is higher and market value of the constituted portion shall be assessed on the basis of the rates determined by the State Government from time to time.
(2) If the rates of land recommended by the District Level Committee are not revised within one years from the date of such recommendation ordered if the market value of the land in any area as extra ordinarily increased or decreased, the State Government may suo-motu or on a reference made by the Inspector General of Stamps re-
determine by order the rates of the land in such areas on the basis of the recommendation made by a committee consisting of SSF(Revenue) as chairman and Inspector General of Stamps, D.S.F. (Tax), Collector of concerned District and a Public Representative of that District nominated by the 36 Government as member. The rates so determined shall be the market value of that area and be the basis of assessment of the market value of the land with effect from the date specified in such order and be valid till the District Level Committee revises the rates do determined."
Section 47A of the Act is as under:-
"47A. Instruments under valued, how to be values(1) Notwithstanding anything contained in the Registration Act, 1908 (Central Act XVI of 1908) and the Rules made thereunder as in force in Rajasthan where, in the case of any instrument relating to an immovable property chargeable with an ad valorem duty on the market value of the property as set forth in the instrument, the registering officer has, while registering the instrument, reasons to believe that the market value of the property has not been truly set forth in the instrument, he may (either before or after registering) sent it in original to the Collector for determination of the market value and to assess and charge the duty in conformity with such determination together with a penalty not exceeding 10 times of the deficient stamp duty chargeable and surcharge, if any, payable on such instrument.
(2) On receipt of the instrument under sub-
section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in the prescribed manner determine the market value and duty including the penalty and surcharge, if any, payable thereon and if the amount of duty including penalty and surcharge, if any, already paid, the deficient amount shall be payable by the person liable to pay the duty including penalty and surcharge, if any."
It is a well settled principle of interpretation that the Court should try to uphold the validity of a provision unless it is clearly ultra vires. In our opinion, we can re-concile Rule 59(B) of the Rules with Section 47A of the Act by adopting the principle of harmonious construction.
Section 47A of the Act is a provision in the 37 statute, whereas Rule 59(B) of the Rule is only a piece of delegated legislation. In our opinion, we can harmonise the two provisions quoted herein above by holding that the assessment determined under the Rules by the District Level Committee ( which is commonly known as 'circle rate') shall not prevent the Registering Officer from making a reference under Section 47A of the Act to the Collector in case the Registering Officer, prima facie, is of the opinion that the real market value of the property is far above the circle rate so determined by the District Level Committee.
In our opinion, this is the only harmonious construction possible because obviously Rules cannot render nugatory the provisions of the Act. Hence, it is not mandatory for the Registering Officer to necessarily accept in every case the recommendations of the District Level Committee. In an appropriate case and in certain situation, the Registering Officer can disagree with the assessment determined by the District Level Committee and refer the matter to the Collector under Section 47A of the Act.
Hence, we set aside the judgment of the High Court. The Appeals are disposed of accordingly. No costs." (emphasis added)
31. Relying upon the decision of the Hon'ble Supreme Court in Stayam Properties's case (supra), Rule 58 of the Rajasthan Stamp Rules, 2004 providing for the procedure for assessment of the market value of the immovable property, has also been held to be intra vires and constitutionally valid by a Bench of this court in Vijay Raj's case (supra). Thus, for the parity of reasons, the vires of provision incorporated under Rule 24(1) of the Rules providing for assessment of market value of the land on the basis of the DLC rate or the rates determined by the IG R&S, whichever is higher, cannot 38 also deserves to be upheld.
32. The Rule 24(1) as framed by the State Government for the purpose of assessment of tax on market value of the land in no manner enlarges the scope or renders the provisions of Section 39 of the Act nugatory whereunder it is permissible to levy the tax on the market value of the land. To put in other words, the authority of the State Government to levy the tax on land even on the basis of its market value stands pre- determined by Section 39 of the Act, the rule framed as aforesaid neither enlarges nor restricts the authority, it only regulates the assessment part of the same. As observed by the Hon'ble Supreme Court in Satyam Properties's case (supra), in appropriate case in certain situation, the Registering Officer may disagree with the DLC rate determined and therefore, if the market value of the land assessed applying DLC rates is found to be excessive by the petitioners in a given case, they are not precluded from questioning the assessment of market value of the land made by the Assessing Authority on available grounds in accordance with law. Thus, viewed from any angle, the provisions of Rule 24(1) of the Rules providing for the assessment of market value of the land for the purpose of levy of tax under the Act cannot be held to be ultra vires the rule making powers of the State Government under the Act.
39
33. Coming to the contention raised by Mr. B.L. Purohit, Senior Advocate that the right conferred upon the petitioner by way of mining lease is right in sub soil area mentioned in lease with no right on surface of the land and, therefore, the mining lease holder being not the owner of the land, no tax can be levied on the land held by them for mining purposes inasmuch as the tax is essentially on the land and not the sub soil area thereof, it is relevant to note that the land which is amenable to tax, stands defined by Section 38(c) which as noticed above is couched in negative terms inasmuch as it excludes certain classes of the land from the ambit of levy of tax under the Act and therefore, all other lands which are not specifically excluded, the land holders thereof could always be brought within the tax net in terms of the provisions of the Act. Indisputably, the mineral bearing land held by the land holders is not excluded from the purview of the 'land' amenable to tax as defined by Section 38(c) of the Act. That apart, the 'land holder' as defined by Section 38(d) is a person who holds or uses the land as its owner, tenant, lessee, licensee, grantee or under any right or contract or in any other capacity. Needless to say that the definition of the 'land holder' incorporated as aforesaid is very wide and it includes all the land holders in whatever capacity they are holding the land amenable to tax under the Act. As a matter 40 of fact, in terms of the definition of 'land' and 'land holder' incorporated as aforesaid, the use of the land for any specific purpose is not of any relevance, therefore, the contention of the petitioners that they are holding the land for mining purposes and thus are having the rights only in sub soil area of the land in no manner takes them out from tax net in terms of provisions of Section 39 of the Act. As observed by a Coordinate Bench in GKW Limited's case (supra), irrespective of the excavation of minerals and payment of dead rent of royalty, the tax is payable by the 'land holders' as defined in the Act. Thus, the petitioners, alleged to be mining lease holders, having right only in sub soil area of the land i.e. right to excavate the minerals from the land with no surface rights, are admittedly holding the land as land holders in terms of the provisions of Section 38(d) of the Act and therefore, in no manner can claim exemption from the payment of tax under under the Act.
34. In view of the discussion above, the decisions cited by the learned counsel Mr. B.L.Purohit regarding the strict construction of fiscal statute do not help the petitioners in any manner.
35. The contention of Mr. B.L.Purohit, Senior Advocate that the marketability of the land is pre requisite for levy of tax under the Act and therefore, the Assessing Authority is 41 required to first decide the question whether the lands of which market value is to be determined is marketable, to say the least, is devoid of any substance. From the plain reading of the provisions of the Act , it is manifestly clear that the tax is to be levied essentially on the lands covered by Section 38
(c) held by the land holders and defined by Section 38(d) of the Act. As noticed above, the assessment of the tax on the basis of the market value of the land is permissible under the Act and market value of the land bearing minerals can always be assessed by the Assessing Authority in accordance with the procedure laid down. As a matter of fact, the concept of marketability of the goods sought to be introduced by the learned counsel in respect of levy of tax on the lands as defined by Section 38(c) of the Act, has no bearing in the instant case.
36. This takes us to consider the contention of learned counsel Mr. M.S. Singhvi, Senior Advocate that the petitioners, Oil India Corporation and Raj West Power Project, engaged in exploration of crude oil and generation of electricity respectively, are holding the land for the public purpose and, therefore, the land held by them stands exempted from levy of tax under the Act by virtue of clause
(b)(iii) of second proviso to Section 39 of the Act.
37. It is settled law that exemption clause in a taxing 42 statute should be construed strictly but once the subject matter of the tax satisfy the test as laid down under exemption clause, the same needs to be construed liberally so as to allow the exemption instead of denying it. In Bombay Chemical's case (supra) relied upon by the learned counsel, the Hon'ble Supreme Court observed:
".....xxxx....One of the settled principles of construction of an exemption notification is that it should be construed strictly, but once a goods is found to satisfy the test by which it falls in the exemption notification then it cannot be excluded from it by resorting to applying or construing such notification narrowly."
38. At this stage, it would be appropriate to refer to the decisions cited by the learned counsel in support of the contention that the lands held by said companies for the public purpose specified falls within the definition of 'public purpose' in terms of clause (b)(iii) of second proviso to Section 39 of the Act.
39. In Ranganatha Reddy's case (supra), the Hon'ble Apex Court observed:
"64. It is right to remember, what has been mentioned in Shri Justice Das' judgment, that modern conditions and the increasing inter-dependence of the different human factors in the progressive complexity of the community make it necessary for the government to touch upon and limit individual activities at more points than formerly. In Corpus Juris the meaning of the terms is stated to be flexible and varying with time and circumstances. All that can be said that it embraces public utility, public advantage, public interest or object.43
It is thus quite clear that a fresh outlook which places the general interest of the community above the interest of the individual pervades our Constitution.....The words 'public purpose' used in Article 23(2) indicate that the Constitution used those words in a very large sense. In the never ending race, the law must keep pace with the realities of the social and political evolution of the country as reflected in the Constitution. If, therefore, the State has to give effect to this avowed purpose of our Constitution, we must regard as 'public purpose' all that will be calculated to promote the welfare of the people as envisaged in these Directive Principles of State Policy whatever else that express may mean.
This new outlook, in the words of Das,J., brings in economic justice regarded yesterday as a fantastic formula, but is today a directive principle of State policy."
40. In Pratibha Nema's case (supra), the Hon'ble Supreme Court while dealing with distinction between the acquisition of the land for public purpose and the acquisition under Chapter VII of the Land Acquisition Act, 1894, observed:
"22. Thus the distinction between public purpose acquisition and Part VII acquisition has got blurred under the impact of judicial interpretation of relevant provisions. The main and perhaps the decisive distinction lies in the fact whether the cost of acquisition comes out of public funds wholly or partly. Here again, even a token or nominal contribution by the Government was held to be sufficient compliance with the second proviso to Section 6 as held in a catena of decisions. The next result is that by contributing even a trifling sum, the character and pattern of acquisition could be changed by the Government. In ultimate analysis, what is considered to be an acquisition for facilitating the setting up of an industry in the private sector could get imbued with the character of public purpose acquisition if only the Government comes forward to sanction the payment of a nominal sum towards compensation. In the present state of law, that seems to be the real position."
41. In Fomento Resorts and Hotels Limited's case (supra), the Hon'ble Supreme Court held that acquisition of land for tourism development project is certainly for a public purpose 44 inasmuch as, a huge amount of foreign exchange is generated by this industry apart from providing employment and anciliary benefits to a large section of population of State.
42. In Soora Ram Pratap Reddy's case (supra), the Hon'ble Apex Court observed:
"67.The expression "public purpose" is of very wide amplitude. It is merely illustrative and not exhaustive. The inclusive definition does not restrict its ambit and scope. Really, the expression is incapable of precise and comprehensive definition. And it is neither desirable nor advisable to attempt to define it. It is used in a generic sense of including any purpose wherein even a fraction of the community may be interested or by which it may be benefited."
43. Adverting to the facts of the case it is pertinent to note that the lands held by the petitioners were acquired by the State Government for the public purpose. According to the learned counsel the land were acquired for the purpose of establishing the industrial units for exploration of the crude oil and generation of the electricity which falls within the definition of 'public purpose'. It is pertinent to note that the "public purpose" as defined by Section 3(f) of the Land Acquisition Act, 1894 ('the Act of 1894') does not include within its ambit the industries set up for production of particular commodity of the public utility. But then, by virtue of provisions of sub-section (3) of Section 6 of the Act of 1894, the declaration issued under Section 6(1) of the Act of 45 1894 is treated to be conclusive evidence that the land is needed for a public purpose or for a company as the case may be. Thus, insofar as the acquisition of the land for the petitioners companies is concerned, the same has to be treated to be acquired for the public purpose. But then, the acquisition of the land for public purposes in terms of provisions of Act of 1894 cannot be given the same meaning under the other statutes which do not deal with cognate subjects. The acquisition of the land for the purpose of establishment of a particular industry may be in the larger public interest but then this does not lead to the conclusion that the land is held by the industries so established for the public purpose. In other words, the exploration of crude oil and generation of the electricity to cater the need of public at large may be the public purpose but then this fact cannot be lost sight of that the petitioner companies works on the business principle for profit and gain and, therefore, for all intent and purposes they cannot be said to be operating their business for the public purpose as such. In considered opinion of this Court, the "public purpose" as mentioned in clause (b)
(iii) of proviso to Section 39, cannot be given such wider meaning so as to include such industrial establishments within its ambit, which though engaged in production of the commodities of the public utility, works for profits and gains. 46 It is settled principle of construction that the meaning of the words and expression used must be interpretated in context of the statute and not by reference to its use in another statute and therefore, the expression 'public purpsoe' in context of the land acquisition proceedings under the Land Acquisition Act, 1894, cannot be given same meaning and cannot be taken as guide for interpretation of the similar expression used in clause (b)(iii) of second proviso to Section 39 of the Act. In considered opinion of this Court, the exemption clause incorporated as aforesaid in the context of the Act indicates that the public purpose as mentioned under the said clause refers to only the land held exclusively for the public purpose i.e. the land put to use for the public at large and no other lands. Thus, merely because the lands held by the petitioners were acquired under the provisions of the Act of 1894 for the public purpose, it cannot be said that the petitioners are holding and using the land for public purposes within the meaning of clause (b)(iii) of proviso to Section 39 of the Act and, therefore, the petitioners are not entitled to claim exemption from the payment of tax under the Act.
44. Lastly coming to the grievances raised by the petitioners in respect of the procedure being adopted by the Assessing Authority while assessing the tax under the Act, it is to be noticed that as per provisions of Section 40 of the Act in the 47 first instance, the Assessing Authority is required to prepare and cause to be prepared in such manner and containing such particulars, as may be prescribed a provisional assessment list of all lands liable to pay the tax. After preparing the provisional list, the Assessing Authority is under an obligation to issue a public notice of the same in the manner and containing such particular as may be prescribed and every person claiming to be land holder of the land mentioned in the list are at liberty to inspect the same and take extract therefrom without payment of any charge. In terms of Section 41 of the Act any person aggrieved by the entry in the provisional assessment list or by insertion therein or omission therefrom of any matter, are entitled to raise objections within thirty days from the date on which the list is made available for inspection. The Assessing Authority has the discretion to entertain the objections even beyond the period of thirty days if he is satisfied that the objector was prevented for sufficient cause from filling the objections within the aforesaid period. By virtue of provision of sub-section (2) of Section 42, the Assessing Authority is under an obligation to afford an opportunity being heard and producing evidence to the objector before deciding the objections. Further, the final assessment order passed by the Assessing Authority under Section 42, 43 or 44 is appealable before the Appellate 48 Authority. That apart, by virtue of provisions of Section 51 of the Act, the State Government or such other authority as may be appointed by it in this behalf is empowered to exercise the revisional power on its own motion or on an application made.
45. Thus, the right of land holder to object the liability of tax and the right to challenge the same by availing appropriate remedy before the authority concerned is specifically provided for under the relevant statute and, therefore, there is absolutely no reason as to why the petitioners should be permitted to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Needless to say the Assessing Authority, the Appellate Authority or the Revisional Authority are vested with the power to decide the question of law as well and if the lands held by the petitioners are not liable to tax under the Act, then it is always open for them to agitate such questions before the Assessing Aurthority and the Appellate Authority in accordance with law.
46. The contention of learned counsel for the petitioners that the remedy provided under the relevant statute is onerous inasmuch as it provides for deposit of one half of the tax assessed and payable by the person prefering the appeal as the condition precedent and, therefore, the remedy 49 provided is not efficacious, to say the least, is absolutely devoid of any merit. It is settled law that the right to appeal is a creation of statute and it can always be circumscribed by the conditions for exercise of the right. It is pertinent to note that the proviso to Section 48 (1) of the Act does not provide for the deposit of the entire amount due but only one half of the tax assessed. It does not even include any other part of the demand such as interest or penalty. In this view of the matter, this court is of the considrered opinon that the condition of pre-deposit provided for exercise of the right to appeal, cannot be said to be onerous.
47. In view of the discussion above, since the effective and efficacious remedy of appeal is available to the petitioners under the relevant statute, they cannot be permitted to invoke the extra ordinary jurisdiction of this court to assail the validity of provisional/final assessment order passed by the Assessing Authority and therefore, we are not inclined to consider the other submissions made by the learned counsel for the petitioners regarding the the fairness of the procedure adopted during the assessment proceedings and other anciliary questions raised as aforesaid. However, on the facts and in the circumstances of the case, we are of the opinion that the petitioners deserve to be granted reasonable time to submit their objections before the Assessing Authority against 50 the provisional assessment list or for filing an appeal before the Appellate Authority in accordance with law.
48. In the result, the challenge to the vires of provisions of Section 38(c) & 39 of the Act and Rule 24(1) of the Rules fails. The writ petitions are dismissed. However, the petitioners, if aggrieved by the entry made in the provisional assessment list, shall be at liberty to file the appropriate objections before the Assessing Authority and in the matters wherein final assessment orders have already been made and demands have been created, they shall be at liberty to file an appeal before the Appellate Authority, if not already filed, within a period of thirty days from the date of this order. The amount, if any, deposited by the petitioners against the demand created in terms of interim orders passed by this Court or otherwise, shall be adjusted against the amount payable so as to satisfy the condition of pre-deposit for maintainability of appeal. Needless to say that the deficit amount, if any, required to be deposited for entertaining the appeal by the Appellate Authority, the same shall be deposited by the petitioners within the stipulated period. No order to costs.
(SANGEET LODHA),J. (ARUN MISHRA),C.J.
Aditya/-
51
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Aditya Joshi, PS