Madhya Pradesh High Court
Associated Cement Companies Ltd. vs State Of M.P. & Ors on 5 October, 2010
Writ Petition No.4875/2000
Associated Cement Companies Ltd. State of Madhya Pradesh and
Ors.
5.10.2010.
Shri R.S.Jaiswal, the learned Senior Advocate with Shri
Manoj Kushwaha, Counsel for the petitioner.
Shri Samdarshi Tiwari, Government Advocate for
respondents.
The petitioner has challenged demand notices Annexures P/3 dated 18.1.1997, P/11 dated 121.4.2000 and P/12 dated 20.7.2000 by which the State has directed for recovery of Upkar from the petitioner.
The aforesaid recovery has been directed under the provision of M.P. Karadhan Adhiniyam, 1982 and M.P. Upkar Adhiniyam, 1986.
The demand in notice Annexure P/12 is for the period for which tax has been imposed is, between March, 1983 and 31.12.1985 Rs.9,60,681/- and Feb. 1986 to March 1991 Rs.5,15,01,532/-
These recoveries have been challenged by the petitioner on the ground that M.P. Karadhan Adhiniyam, 1982 was declared ultra vifres by Division Bench of this Court in Hiralal Rameshwar Prasad Vs. State of M.P. And others [( 1986 MPLJ 514) and the subsequent enactment M.P.Upkar Adhiniyam, 1987 has been declared ultra vires by a Full Bench judgment of this Court in M.P.Lime Manufacturers' Association vs. State of M.P. And another [ 1989 MPLJ 561 ], so the respondents have no authority to recover the tax under the enactments which have been declared ultra vires. Reliance is also placed to a Single Bench judgment of this Court in Satya Narayan Mishri Lal Bediya vs. State of M.P. And others W.P.No.1607/1998 decided on 20th March, 2002 by which the Single Judge of this Court, while considering the aforesaid directed that ' no tax for the period prior to 1991 can be levied or collected by the State after 4.4.1991.' Writ Petition No.4875/2000 Associated Cement Companies Ltd. State of Madhya Pradesh and Ors.
Relying upon the aforesaid, it is submitted by Shri Jaiswal that impugned notices may be quashed.
Shri Samdarshi Tiwari, the learned Govt. Advocate appearing for the State, tried to justify the action of the State on the ground that the tax prior to 4.4.1991 can be recovered by the State as the aforesaid declaration of these enactments was prospective.
So far as M.P. Karadhan Adhiniyam, 1982 is concerned, the Division Bench of this Court in Hiralal Rameshwar Prasad (supra) considering the question held:
"20. Consequently these petitions are allowed with costs and it is declared that the imposition of mineral areas development cess by Part IV of the Madhya Pradesh Kardhan Adhiniyam, 1982, as amended by M.P. Act No. 15 of 1983 and M.P. Act No.13 of 1985, is unconstitutional since the State Legislature was not complete to enact such a law. The respondents are, therefore, restrained from recovering any amount as mineral areas development cess under these provisions. It is also directed that the amounts which may have been recovered as mineral areas development cess by the respondents from any of these petitioners should be refunded to them."
A Full Bench of this Court in M.P.Lime Manufacturers' Association (supra), considered the provision of M.P.Upkar Adhiniyam, 1987 held thus:
16. For all these reasons, these petitions are allowed. The provisions of Section 11 of the M.P Upkar Adhiniyam, 1981 (Act No.1 of 1982) as amended by the M.P. Upkar (Sanshodhan) Adhiniyam, 1987 (Act 21 of 1987) imposing cess on land held in connection with mineral rights, are declared as ultra vires. The respondents are restrained from recovering any cess from the petitioners in pursuance of the aforesaid provisions.
"
The learned Single Judge of this Court considering the similar question in Satya Naraqyan Mishri Lal Bediya(supra) held thus:
Writ Petition No.4875/2000Associated Cement Companies Ltd. State of Madhya Pradesh and Ors.
"The decision taken is that taxes collected by the State before 4.4.1991 are not required to be refunded but the act does not sanction the recovery of any tax after 4.4.1991. The Supreme Court has held in District Mining Officer and Ors. vs. Tata Iron and Steel (Supra) that section 2(1) of the Validation Act having used the expression "upto 4.4.91",it unequivocally indicates that what is validated is the process of levy and collection made upto that date and no further. The Validation Act never conferred a right to levy or collection after 4.4.1991. It was held in Tata Iron and Steel (supra) that Knnadasan's case was wrongly decided as that runs contrary to the observations made in Mafatlal Industries case JT 1996(11)SC
283. The contrary view taken by the Andhra Pradesh High Court and Karnataka High Court following the decision of Kannadasan's case was held to be incorrect."
In view of the aforesaid decision, there is no doubt that the notices issued by the respondents for recovery of the amount in question were issued under the enactment which have been declared ultra vires by this Court.As the aforesaid enactments have been declared ultra vires, the respondents were having no authority to demand tax under the aforesaid Acts which were already held ultra vires.
In view of the aforesaid, this petition is allowed. The demand notices in Annexures P/3, P/11 and P/12 are hereby quashed, with no order as to costs.
(Krishn Kumar Lahoti) (Mrs. Vimla Jain)
Judge Judge
JLL