Madhya Pradesh High Court
M/S. Rishi Granite Industry vs The State Of Madhya Pradesh on 10 November, 2021
Author: Vishal Mishra
Bench: Vishal Mishra
1
THE HIGH COURT OF MADHYA PRADESH
WP No. 11885 of 2011
(SVIL MINES LIMITED Vs THE STATE OF MADHYA PRADESH AND OTHERS)
WP/11893/2011, WP/12412/2011, WP/12530/2011, WP/12592/2011, WP/12593/2011,
WP/12594/2011, WP/13371/2011, WP/13510/2011, WP/13537/2011, WP/13539/2011,
WP/13623/2011, WP/13722/2011, WP/13763/2011, WP/14074/2011, WP/14130/2011,
WP/15643/2011, WP/15645/2011, WP/15797/2011, WP/17980/2011, WP/03697/2012
Jabalpur, Dated : 10.11.2021
Shri R.S.Jaiswal, learned Senior Advocate with Shri K.K.Gautam,
learned counsel for the petitioners in W.P.No.11885/2011, WP/11893/2011,
WP/12530/2011, WP/13510/2011, WP/13722/2011, WP/14074/2011.
Shri Akshay Dharmadhikari, learned counsel for the petitioners in
WP/12412/2011, WP/12592/2011, WP/12593/2011, WP/12594/2011,
WP/13537/2011, WP/13539/2011, WP/13763/2011.
Shri Amalpushp Shroti, learned counsel for the respondents.
The present petitions involving the common issues are taken up for analogous hearing.
Counsel appearing for the rival parties have fairly submitted before this court that the controversies involved with respect to the issue involved in the present case, the matter was taken up by the Full Bench of this Court in the case of M/s. Vandey Matram Gitti Nirman Vs. State of Poorv Kshetra Vidyut Vitran Co. Ltd. & Others. wherein the Hon'ble Full Bench has held as under :-
"9. A Full Bench of this Court has decided the aforesaid issues 2 vide order dated 28.02.2020 passed in Writ Appeal No.202/2012 (M/s Vandey Matram Gitti Nirman vs. M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. and others) and found that in Division Bench judgment of this Court in Stone Crusher Owners Association's case (supra), only the validity of Section 3(1) of the 1949 Act was upheld.
The question: as to whether the stone crushing units would be covered by the definition of 'mine' in terms of Explanation (b) of Part B of Section 3(1) of the 1949 Act and Section 2(1)(j) of the 1952 Act was not decided in the said decision, therefore, it did not lay down any law relating to the present controversy and thus, it could not be relied upon to hold that all stone crushing units would be chargeable to rate of duty as per Entry 3 of Part B of Table appended to Section 3(1) of the 1949 Act. Accordingly, the subsequent decision rendered by a Division Bench of Indore Bench of this Court in M/s Stuti-1's case (supra) wherein the same view was upheld, has been overruled. Analysing the definition of "mine"
as provided under Explanation (b) of Part B of Section 3(1) of the 1949 Act and Section 2(1)(j) of the 1952 Act, the Bench opined that nowhere in Section 2(1)(j) of the 1952 Act the stone crusher unit or stone crushing activity is included to mean a "mine". For the purposes of the said provisions, "mine" would mean only the excavation and where any operation for the purposes of searching for or obtaining or winning the mineral has been or is being carried and further, if at all the stone crushing unit or its premises or machinery or such activity could be related to mining activity, still 3 the exception is carved out in sub-clauses (x) and (xi) of Section 2(1)
(j) of the 1952 Act to mean only those premises which are exclusively occupied by the owner of the mine or any premises in or adjacent to and belonging to mine on which any process ancillary to the getting, dressing or operation for sale of mineral or of coke is being carried out. The Bench also took note of the definition of "minerals" as provided under Section 2(1)(jj) of the 1952 Act and considering the same vis a vis the definition of "mine" as contained in Section 2(1)(j) of the 1952 Act, held that if a person carrying on the business of stone crushing, is purchasing the said mineral from other source and is not directly obtaining the mineral through mining, digging and quarrying etc., which is used in the stone crusher for converting into Gitti then the said activity would not be treated to be mining activity. However, if the person has a mining license and carrying out the mining activity being covered under the provisions of the 1952 Act and his stone crushing unit is situated in or adjacent to the mine, he will be liable to pay the rate of electricity duty as applicable to mines as per Entry 3 of Part B of Table appended to Section 3(1) of the 1949 Act. Further, whether a stone crushing unit is situated in or adjacent to a mine, shall depend upon the facts of each case. As regards the circular dated 30.03.2010 is concerned, the Bench held that the same is not the correct interpretation of Explanation (b) of Part B of Section 3(1) of the 1949 Act and Section 2(1)(j) of the 1952 Act. The relevant extract of the Full Bench judgment is reproduced as under:-
"16. For the purposes of definition of "mine" as envisaged 4 under Section 2(1)(j) of the 1952 Act, the "mine" means any excavation where any operation for the purposes of searching for or obtaining minerals has been or is being carried on and includes the items provided from sub-clause (i) to (xi) of Section 2(1)(j) of the said Act, as reproduced above. The words "in or adjacent to a mine" or "in or adjacent to and belonging to a mine" have also been used in sub-clauses (ii), (vi), (vii) and (xi) of Section 2(1)(j) of the 1952 Act. Sub-clause (viii) has used the words "all workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with that mine or a number of mines under the same management". Similarly, sub-clause (x) of Section 2(1)(j) of the Act has used the words "being premises exclusively occupied by the owner of the mine". The intent of the Legislature being that rate of duty payable in terms of Entry 3 of Part-B of the Table appended to Section 3(1) of the 1949 Act in respect of mines (other than captive mines of cement industry) would include the mine itself, the premises or machinery situated in or adjacent to a mine wherein crushing, processing, treatment or transportation of the minerals as mined is undertaken. If the intent of the Legislature had been to include all the mining operations or mining activities involving crushing, processing, treating or transporting the mineral, it would not have put the words "premises or machinery situated in or adjacent to a mine" in the definition of "mine" envisaged under explanation (b) of Part B of Section 3(1) of the 1949 Act. Obviously, for the purposes of "mine" under explanation (b) of Part B of Section 3(1) of the 1949 Act, the intent of the Legislature was not to include the mining activities which are not in or adjacent to a mine. The definition contained in explanation (b) of Part B of Section 3(1) of the 1949 Act is, thus, clear and unambiguous.
17. The first part of the definition of "mine" as contained in explanation (b) of Part B of Section 3(1) of the 1949 Act reads that "'mine' means a mine to which the Mines Act, 1952 applies".
Although a perusal of the definition of "mine" as contained in Explanation (b) shows that it cannot be understood in its narrow sense but it has a wider connotation since it includes the definition of "mine" as contained in Section 2(1)(j) of the 1952 Act but the later part of the provision contained in Explanation (b) reads that "and includes the premises or machinery situated in or adjacent to a mine and used for crushing, processing, treating or transporting the mineral". It is a trite law that the provision has to be read as a whole and not in isolation. The words "includes the premises or machinery situated in or adjacent to a mine" make the legislative intent very clear that for the purposes of 1949 Act, though the definition of "mine" as contained in Section 2(1)(j) of the 1952 Act shall apply but it shall also include the premises or machinery situated in or adjacent to a mine and used for crushing, processing, treating or transporting the mineral.
18. The mining license to carry out mining activity is issued under the Mines Act, 1952 and then only the person is allowed to carry out the mining business. Where the person has purchased the boulders from mine owners and converts the same into Gitti through the stone crusher, he cannot be said to be directly involved in the mining activity. Though the definition of "mine" as provided 5 under explanation (b) of Part B of Section 3(1) of the 1949 Act includes the premises or machinery situated in or adjacent to a mine and used for "crushing" the mineral but it also says that the "mine" to which the 1952 Act applies whereas definition of "mine" provided under Section 2(1)(j) of the 1952 Act leads to an inference that the "mine" would mean only the excavation and where any operation for the purpose of searching for or obtaining or winning the mineral has been or is being carried out and includes all other activities provided from sub-clause (i) to (xi) of Section 2(1)(j) of the 1952 Act. Nowhere the stone crusher unit or stone crushing activity is included in the said provision to mean a "mine". If at all the stone crushing unit or its premises or machinery or such activity could be related to mining activity, still the exception is carved out from perusal of sub-clauses (x) and (xi) of Section 2(1)(j) of the 1952 Act to mean that only those premises which are exclusively occupied by the owner of the mine or any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting, dressing or operation for sale of minerals or of coke is being carried on.
19. Apart from the aforesaid, a perusal of definition of "minerals" provided under Section 2(1)(jj) of the 1952 Act shows that the mineral means all substances which can be obtained from the earth by mining, digging, drilling, dredging, hydraulicing, quarrying or by any other operation and includes mineral oils (which in turn include natural gas and petroleum). If a person running a stone crusher unit whether in or adjacent to mine or outside the mining area, is not obtaining the said mineral for crushing through the process defined under Section 2(1)(jj) of the 1952 Act i.e. by mining, digging, drilling, dredging, hydraulicing, quarrying or by any other operation then such stone crusher unit also cannot be said to be directly involved in mining activity. In these circumstances, if a person carrying on the business of stone crushing, is purchasing the said mineral from other source and is not directly obtaining the mineral through mining, digging and quarrying etc. which is used in the stone crusher for converting into Gitti then he cannot be said to be involved in the mining activity.
*** *** *** In view of the careful analysis of aforesaid provisions of the 1949 Act and 1952 Act, we find that if a stone crusher unit is not exclusively occupiedby the owner of the mine and is not belonging to a mine, then such stone crusher unit would not fall within the ambit and scope of explanation (b) of Part B of Section 3(1) of the 1949 Act so as to attract the rate of duty as provided at Entry 3 Part B of Table appended to Section 3 of the 1949 Act. In this view of the matter, the following conclusions are drawn in respect of question Nos.(i) and (ii):- (i) Question No. (i) is answered in the negative by holding that rate of duty provided under Entry 3 of Part-B of the Table under Section 3(1) of the 1949 Act as applicable to mines, cannot be applied and enforced upon those stone crushing units which are only carrying on stone crushing activity whether or not situated in or adjacent to a mine. To put it differently, if a stone crushing unit is not exclusively occupied by the owner of the mine and it is not belonging to a mine, then such 6 stone crushing unit would not fall within the ambit and scope of explanation (b) of Part B of Section 3(1) of the 1949 Act so as to attract the rate of duty as provided at Entry 3 Part B of Table under Section 3(1) of the 1949 Act;
(ii) Question No.(ii) is answered in the affirmative and it is held that if the appellant has a mining license and carrying out the mining activity being covered under the provisions of the 1952 Act and his stone crushing unit is situated in or adjacent to the mine, he will be liable to pay the rate of electricity duty as applicable to mines as envisaged in Entry 3 of Part B of Table appended to Section 3(1) of the 1949 Act. However, whether such stone crushing unit is situated in or adjacent to a mine, shall depend upon the facts of each case.
*** *** ***
44. From the above discussion and in view of the answer to question Nos. (i) and (ii) above, it is concluded that:-
(i) the Division Bench judgment in M/s Stuti-1's case (supra) wherein it was held that the petitioners though not the mine owners, having the crushing unit established at place not adjacent or in the premises where the mine is situated being covered by definition of 'mine' as contained in explanation (b) of Part B of Section 3(1) of 1949 Act are liable to pay electricity duty as applicable to "mines" (other than captive mines of a cement industry) does not lay down the correct law and is thus, overruled;
(ii) the Division Bench in Vastu-1's case (supra) correctly observed that as to whether a crushing unit situated outside the mining area or to be more precise not situated in or adjacent to a mine will also be covered by the said definition of 'mine' was not in issue nor decided in Stone Crusher Association's case (supra);
(iii) in Division Bench judgment of this Court in Stone Crusher Association's case (supra) though the argument was raised on behalf of the respondent-Company that the definition of 'mine' is extended for the purposes of charging electricity duty which includes crushing, processing, etc. as activity in relation to minerals but the question as such was not decided and it was only held that the State is allowed wide choice in selection of objects and persons and such an exercise has never been said to be arbitrary or without any legislative competence and therefore, the legislature cannot be said to have erred in defining "mine" in Explanation (b) of Part B of Section 3(1) of the Act for the purpose of imposition of electricity duty. Only the validity of Section 3(1) of the 1949 Act was upheld in Stone Crusher Association's case (supra) which was later affirmed by the Supreme Court in Manganese Ore India Limited vs. State of M.P. and others, (2017) 1 SCC 81 but since the question as to whether the stone crushing unit would be covered by the definition of 'mine' in terms of explanation (b) of Part B of Section 3(1) of the 1949 Act and Section 2(1)(j) of the 1952 Act was not decided in Stone Crusher Association's case (supra), therefore, the said decision does not lay down any law relating to the present controversy and it was not 7 open to be relied upon to hold that all stone crushing unit would be chargeable to rate of duty as per Entry 3 of Part B of Table appended to Section 3(1) of the 1949 Act;
(iv) In view of the above, the decisions of this Court wherever it is held that the stone crushing units even though not occupied by the mine owners and/or not belonging to mine, situated in or adjacent to mine and even if situated outside the mining area are chargeable to rate of duty as per Entry 3 of Part B of Table appended to Section 3(1) of the 1949 Act, are not the correct enunciation of law and are, thus, overruled and such decisions where the rate of duty as per Entry 3 was held to be applicable to stone crushing units which were occupied by the mine owner and belonging to mine and situated in or adjacent to mine are upheld;"
Counsel appearing for the respondents in the matter has also filed applications for disposal of the writ petitions in the light of the order passed by the Full Bench of this Court in the case of M/s. Vandey Matram Gitti Nirman (supra).
Counsel appearing for the petitioners have no objection to the aforesaid. It is submitted that prior to passing of the final order by the authorities, the opportunity may be granted by the respondents to the petitioners.
Considering the facts and circumstances of the case and also the judgment passed by the Full Bench of this court in the aforesaid case, these petitions are also disposed of in terms of the directions issued by the Full Bench in the case of M/s. Vandey Matram Gitti Nirman (supra). It is expected that the respondents prior to finalizing the case of the petitioners in the light of Full Bench judgment shall give the opportunity of hearing to the petitioners.
Needless to mention that this court has not expressed any opinion on 8 the merits of the case.
With the aforesaid observations, the petitions are disposed of.
(VISHAL MISHRA) JUDGE Sha Digitally signed by SMT SHALINI SINGH LANDGE SMT SHALINI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, SINGH LANDGE 2.5.4.20=571661a5ba04340d50d7005c586874c8fe1c 02e07ce90b871c2c4584cba9725e, cn=SMT SHALINI SINGH LANDGE Date: 2021.11.12 16:18:23 +05'30'