Madhya Pradesh High Court
M/S Adarsh Stone Company (Crusher) vs The State Of Madhya Pradesh on 9 September, 2019
Author: Vishal Dhagat
Bench: Vishal Dhagat
W.A. No.202/2012 & connected matters
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HIGH COURT OF MADHYA PRADESH, JABALPUR
Writ Appeal No.202 of 2012
M/s Vandey Matram Gitti Nirman
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.237 of 2012
Rajendra Granite Chandrapura
Versus
Madhya Pradesh East Zone Electricity Distribution Co. Ltd.
Writ Appeal No.247 of 2012
M/s Krishna Minerals & Industris New Industral Area
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.249 of 2012
M/s Bundelkhan Associates, Donga
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.250 of 2012
M/s Sharda Minerals And Industries Donga
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.252 of 2012
M/s Fair Dea Minerals Kari Road Alampura
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.257 of 2012
Shraddha Stone Crusher
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.258 of 2012
M/s Pali Stone Crusher
Versus
W.A. No.202/2012 & connected matters
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Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.259 of 2012
Akhil Kumar Jaiswal
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.260 of 2012
Ghai Stone Crusher
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.261 of 2012
Prathihar Stone Crusher
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.278 of 2012
M/s Eastern Minerals
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.313 of 2012
M/s Guru Arjun Minerals
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.321 of 2012
Shree Ram Stone Crusher
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.344 of 2012
M/s Jai Bajrang Gramoudyog
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.345 of 2012
Jai Jagdambey Stone
Versus
W.A. No.202/2012 & connected matters
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Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.346 of 2012
Balaji Stone Crusher
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.347 of 2012
Jai Hanuman Stone Crusher
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.348 of 2012
M/s Radhey Radhey Granite
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.349 of 2012
Rahi Granite
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.477 of 2012
M/s Mahamaya Stone Crusher
Versus
M.P. State Electricity Board
Writ Appeal No.587 of 2012
M/s Trilok Singh Khanduja Stone Crusher
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitaram Co. Ltd.
Writ Appeal No.832 of 2012
M/s Ram Kunwar Construction Pvt. Ltd.
Versus
The State of Madhya Pradesh
Writ Appeal No.260 of 2013
Abhitap Kumar Shukla
Versus
W.A. No.202/2012 & connected matters
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Chairman Cum Managing Director
Writ Appeal No.261 of 2013
SNS (Minerals) Limited PO Maihar
Versus
Chairman Cum Managing Director
Writ Appeal No.262 of 2013
M/s Balaji Stone Crusher
Versus
Chairman Cum Managing Director
Writ Petition No.51 of 2014
M/s Balaji Stone Crusher, Satna
Versus
The State of Madhya Pradesh
&
Writ Appeal No.79 of 2016
M/s Adarsh Stone Company (Crusher)
Versus
The State of Madhya Pradesh
Bench Constituted : Hon'ble the Acting Chief Justice Shri
R.S. Jha &
Hon'ble Shri Justice Vishal Dhagat, JJ.
Judgment delivered by : Hon'ble the Acting Chief Justice
Shri Justice R.S. Jha
Whether approved for : Yes/No
reporting
Name of counsel for : For Appellant: Shri Sanjay Agrawal
parties and Shri Ashok Agrawal, Advocates.
For respondents : Bhoopesh Tiwari,
Govt. Advocate.
Law laid down :
Significant paragraph :
numbers
JUDGMENT
(12.09.2019) Per: R.S. Jha, ACJ.
W.A. No.202/2012 & connected matters
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As the issues involved in all these appeals are identical they are heard concomitantly. For the sake of convenience the facts stated in W.A.No. 202 of 2012 are taken for ready reference.
2. These appeals are filed against a common judgment passed by the learned Single Judge in W.P. No.5070/2011 (M/s Jai Hanuman Stone Crusher Vs. M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. and others) and all other connected matters.
3. The learned Single Judge has dismissed the petitions, filed by the persons who are involved in the business of crushing stone and converting them into chips known as Gitti, challenging the imposition of Electricity Duty under the provisions of M.P. Electricity Duty Act, 1949 at the rate of 40% by treating the petitioners/appellants as mines under entry no.3 of Part B of the Table appended to Sub section (1) of Section 3 of the Act, 1949. The levy of electricity duty at the rate of 40% was challenged by the petitioners/appellants on the ground that the appellants are not miners as they do not possess a mining licence nor are they involved in the activities of extracting minerals as well as on the ground that their crushers were not situated in and adjacent to a mine.
4. It was contended that in view of the aforesaid admitted and undisputed factual premises prevailing in the case, the W.A. No.202/2012 & connected matters
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respondents have erred in law in charging electricity duty under entry No.3 instead of entry relating to industries in general. It is submitted that previously the respondents were charging electricity duty as an industry but by circular dated 30.03.2010, the petitioners/appellants have been brought within entry No.3 by applying the definition of mines as contained in Explanation-B of Section 3 of the Act of 1949.
5. It is contended that, by the aforesaid impugned circular, the respondents have treated the crushing Unit of the appellants as 'mines' and have imposed electricity duty at the rate of 40%.
6. The learned counsel for the appellants contended that as the appellants are neither miners nor is their crushing unit situated in and adjacent to a mine and as these aspects and factual contentions of the appellants are undisputed, the levy of higher rate of duty @ 40% upon the appellants, is illegal. It is submitted that the appellants were and are entitled to pay electricity duty at the rate prescribed for industries in general.
7. The learned counsel for the parties have fairly stated before this Court that the M.P. Electricity Duty Act, 1949 has been repealed by the M.P. Vidyut Shulk Adhiniyam, 2012 and that the dispute in respect of the rate of duty in the present appeals is for the period 2010 to 2012. It is submitted that W.A. No.202/2012 & connected matters
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since the year 2012, the appellants are paying duty @ 9%, pursuant to an interim order passed by this court as well as in view of entry no.6 of the Schedule appended to the M.P. Vidyut Shulk Adhiniyam, 2012.
8. The learned Government Advocate for the State, per contra, submits that in view of the decision of this court rendered in the case of the Stone Crusher Owners Association and others Vs. Madhya Pradesh Electricity Board and others, (M.P. No. 673/1993) decided on 19.10.1994 as well as the decision in the case of Hindustan Copper Limited Vs. State of M.P. and others, AIR 2012 M.P. 49, and the Division Bench decision of the Indore Bench of this Court in the case of State of Madhya Pradesh Vs. M/s Stuti and others, (W.A. No.140/2011) decided on 15.12.2016, the issue raised by the appellants is no longer res integra and has already been decided against them by the Division Bench of this Court. It is submitted that in such circumstances, the appeals, filed by the appellants, be dismissed.
9. We have heard the learned counsel for the parties at length.
10. It is observed that in the case of the Stone Crusher Owners Association (supra) decided on 19.10.1994, the appellants, apart from challenging the rate of the electricity W.A. No.202/2012 & connected matters
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duty imposed upon them, had also challenged the constitutional validity of the definition of Mines as given in section 3 of the Act of 1949. The Division Bench of this Court, while dismissing the petition as far as the challenge to the constitutional validity of the definition of the Mines is concerned, did not advert to or decide the issues that have been raised by the appellants in the present appeals, as enumerated in the preceding paragraphs. However, as far as the contention of discrimination regarding levy of different rates of electricity duty to the crushers situated in and adjacent to mines and those situated away from the mines is concerned, the Division Bench directed the respondents to look into the matter and held as under:-
"12. Yet another submission putforth was that the State has not charged the same rate in respect of other persons the details of which have been given in the petition. It is alleged that State is discriminating between the same class. The avertments made in this regard in para (1) of the petition have not been controverted by the State or the Electricity Board. It is a wrong exercise of power by the authority which does not make the law invalid. The respondents shall look into the matter and correct the bills issued in respect of persons mentioned in the petition."
11. The decision in the case of the Stone Crusher Owners Association (supra) was considered by a Division Bench of this court in L.P.A. No. 247/1998 (M/s. Vastu Vs. M.P. W.A. No.202/2012 & connected matters
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Electricity Board and others) wherein the Division Bench has clearly held that the issue as to whether entry no.3 was confined necessarily to a crushing unit indulging in mining and the import of the words "in or adjacent" mentioned in the definition of mine contained in the Electricity Duty Act was neither considered or decided in that case and therefore referred the matter to back to the Single Bench for adjudication in that regard.
12. The observations made by the Division Bench in the case of M/s. Vastu (supra) in this regard as contained in paragraph 3 are as under:-
"3. We have perused the judgment dated 19.10.94 passed in M.P.No.673/93. In the said M.P. No.673/93, the challenge was to the vires to the said definition of 'mine' given in Sec.3(b) of the M.P. Electricity Duty Act, 1949 as also the amendment made in the Schedule, imposing higher tariff. The Division Bench held that the provisions under challenge do not suffer from any constitutional-vice or from any statutory invalidity. With this finding the said petition was dismissed. The point projected in the present petition 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 M.P.673/93. In our considered opinion, the learned Single Judge ought to have considered the aforesaid issue involved in the petition. We, therefore, deem it proper to remit the case back to the learned Single Judge for deciding the petition afresh. It will also be appropriate to have the W.A. No.202/2012 & connected matters
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reply of the State filed in the case. After all it is the State which is the real contesting party inasmuch as the duty is to be paid to the State although through the agency of the M.P. Electricity Board. It is really surprising to note that the State having taken adjournments several times failed to file their reply. Shri Desai, learned Dy. Adv. General submits that the reply shall be filed by the State no sooner the case is listed before the Single Bench."
13. The Single Bench of this court in the case of Shri Krishna Mehrotra v. Madhya Pradesh State Electricity Board and others, (W.P. No. 3153/2004) decided on 28.08.2008 has considered the aforesaid two aspects and has held that the electricity duty under the entry 'Mine' can be imposed upon a stone crusher only in case the crushing unit also possesses a mining lease and that it is established in or adjacent to a Mine.
14. The learned Single Judge, in the impugned order, has held that the issue raised by the petitioners is squarely covered by the decision in the case of Stone Crusher Owners Association (supra) and Hindustan Copper (supra) and has not agreed with the decision of the Division Bench in the case of M/s Vastu (supra) by making the following observations:-
"26. The Division Bench was thus very much alive of the issue and the expanse of applicability of the definition 'mines' contained in Explanation (b) of W.A. No.202/2012 & connected matters
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Section 3 of 1949 Act. It appears that the Division Bench in M/s. Vastu (supra) overlooked the above facts while observing that "the point projected as to whether a crushing unit situated outside the mining area or to be more precise not situated adjacent to a mine will also be covered by the said definition of 'mine' was not in issue nor decided in M.P. 673/1993.
27. The issue as to whether a crushing unit situated outside the mining area or to be more precise not situated in or adjacent to a mine being covered by decisions in the Crusher Owners Association and other (supra) and Hindustan Copper Limited (supra), i.e. the petitioners though not the mine owners, having the crushing unit established at place nor adjacent or in the premises where the mine is situated being covered by the definition of 'mine' as contained in Explanation (b) to section 3 of 1949 Act are liable to pay electricity duty as applicable to the "mines (other than captive mines of a cement industry)."
15. It is evident from the above that the learned Single Judge has held that a crushing unit which is situated outside the mining area and is not situated in and adjacent to a Mine and was not indulging in mining activities, is yet required to pay electricity duty under the entry relating to mines in view of the decision in the case of Hindustan Copper (supra) and Stone Crusher Owners Association (supra). A Division Bench of this Court in the case of M/s Stuti (supra) decided on 15.12.2016, has recorded a similar finding by W.A. No.202/2012 & connected matters
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relying upon the impugned decision of the learned Single Judge.
16. The learned counsel for the parties point out that the decision rendered by this Court in the case of Hindustan Copper (supra) has been over-ruled in the case of Manganese Ore India Vs. State of M.P and others, (2017) 1 SCC 81. At the same time it is also pointed out that the decision of this Court, upholding the validity of Section 3 of the Act of 1949, in the case of Stone Crusher Owners Association (supra), has been affirmed by the Supreme Court.
17. In the instant case, as recorded by the learned Single Judge in the impugned judgment as well as in para 27, it is an admitted and undisputed fact that the appellants are not holding a mining lease nor are they indulging in any mining activities. It is also an undisputed fact that the crushing units are not situated in and adjacent to a mine.
18. In view of the decisions referred to in the preceding paragraphs, it is apparent that a Division Bench of this Court in the case of M/s Vastu (supra) has categorically held that the aforesaid two issues have neither been considered nor decided by the Division Bench of this Court in the case of Stone Crusher Owners Association (supra). Contrary to the aforesaid view taken by the Division Bench in the case of W.A. No.202/2012 & connected matters
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M/s Vastu (supra), the Division Bench in the case of M/s Stuti (supra), has held that all the stone crushers would fall within the definition of Mines irrespective of the fact that they are not indulging in any mining activity and that their crushing units are not situated in and adjacent to a mine.
19. The definition of "Mine" as contained in Section 3(b) of the Act of 1949, is as under:-
"Mine' means a mine to which the Mines Act, 1952 (No.35 of 1952) applies and includes the premises or machinery situated in or adjacent to a mine and used for crushing, processing, treating or transporting the mineral."
The definition of "Mine" as contained in Section 2(j) of the Mines Act, 1952, is as under:-
"(j) mine means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes:-
(i) all borings, bore holes, oil wells and accessory crude conditioning plants, including the pipe conveying mineral oil within the oilfields;
(ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not;
(iii) all levels and inclined planes in the course of being driven;
(iv) all open cast workings;
(v) all conveyors or aerial ropeways provided for the bringing into or removal from a mine of W.A. No.202/2012 & connected matters
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minerals or other articles or for the removal of refuse therefrom;
(vi) all adits, levels, planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a mine;
(vii) all protective works being carried out in or adjacent to a mine;
(viii) 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;
(ix) all power stations, transformer sub-stations, convertor stations, rectifier stations and accumulator storage stations for supplying electricity solely or mainly for the purpose of working the mine or a number of mines under the same management;
(x) any premises for the time being used for depositing sand or other material for use in a mine or for depositing refuse from a mine or in which any operations in connection with such sand, refuse or other material is being carried on, being premises exclusively occupied by the owner of the mine;
(xi) any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on;"
20. From a perusal thereof, it is apparent that the expanded definition of 'Mine' incorporated in the Act of 1949 can apply only to those involved in crushing, processing, treating or W.A. No.202/2012 & connected matters
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transporting mineral in case the premises or machinery is situated "in or adjacent to a Mine".
21. Quite apart from the above, it is also apparent that the main entry in the schedule relating to imposition of electricity duty under the Act of 1949, relates to a Mine and, therefore, the issue as to whether the process of crushing, processing, treating or transporting the mineral in a premises or machinery situated in or adjacent to a 'Mine' can fall within the aforesaid entry only in case the person undertaking the said process of crushing, processing, treating or transporting also holds a mining lease also requires to be considered.
22. In the circumstances, and in view of the conflicting observations made by this Court in the case of M/s Vastu (supra) and M/s Stuti (supra) and in the absence of any detailed discussion in respect of applicability of the entry relating to units that are not situated in or adjacent to a Mine, we are of the considered opinion that the matter deserves to be referred to a Larger Bench for consideration and decision on the following issues:-
(i) Whether the rate of electricity duty, applicable to mines, can be applied and enforced upon stone crushing units that are not situated in and adjacent to a mine?
W.A. No.202/2012 & connected matters
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(ii) Whether the electricity duty applicable to mines can be imposed upon only those stone crushing units that are also indulging in mining activities?
(iii) Whether the observations made by the Division Bench of this Court in the case of L.P.A. No. 247/1998 (M/s. Vastu Vs. M.P. Electricity Board and others) or the decision rendered in the case of State of Madhya Pradesh Vs. M/s Stuti and others, (W.A. No.140/2011) lays down the correct law?
(iv) Any other issue arising out of the dispute relating to determination of the rate of electricity duty to be imposed upon the stone crushing units.
23. The matter be placed before Hon'ble the Chief Justice on administrative side for constitution of a Larger Bench.
(R.S. Jha) (Vishal Dhagat)
Acting Chief Justice Judge
msp
Digitally signed by MANVENDRA SINGH
PARIHAR
Date: 2019.09.19 13:01:37 +05'30'