V.N.K MENON vs. STATE OF KARNATAKA

-: 1 :-

IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 03RD DAY OF DECEMBER, 2015 PRESENT THE HON'BLE MR.SUBHRO KAMAL MUKHERJEE, ACTING CHIEF JUSTICE AND THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

Writ Petition Nos.2642/2009 (GM-MM-S) c/w 44793/2013, 13595/2008, 13516/2008, 13654/2008, 13803/2008, 14157/2008, 14802/2008, 30927/2008, 30928/2008, 30995/2008, 31128/2008, 31129/2008, 31141/2008, 31142/2008, 31143/2008, 31144/2008, 31145/2008, 31146/2008, 31147/2008, 31148/2008, 31149/2008, 31152/2008, 31181/2008, 31183/2008, 31188/2008, 31189/2008, 31191/2008, 31227/2008, 31228/2008, 31229/2008, 31230/2008, 31234/2008, 31235/2008, 31266/2008,

31327/2008, 31439/2008, 31577/2008 (GM-MM-S), 368/2009 (GM-FOR), R

-: 2 :-

863/2009, 6721/2009, 10712/2009, 16237/2009, 35251/2009 (GM-MM-S), 60230/2009 (GM-FOR), 15782/2010, 15795/2010, 15809/2010, 15825- 15826/2010, 15953/2010, 15954/2010, 15984/2010, 15985/2010, 15990/2010, 15991/2010, 16145/2010, 16144/2010, 16147/2010, 17000/2010, 17001/2010, 17002/2010, 17087/2010, 17455/2010, 17580/2010, 17581/2010, 17582/2010, 17583/2010, 18500/2010, 18952/2010, 20215/2010, 23901/2010, 29222/2010, 32095/2010, 37208/2010, 37209/2010, 37210/2010, 39190/2010, 9960/2010, 15431/2010,

15432/2010, 545/2011, 2776/2011,

7337/2011, 13023/2011, 15686/2011, 15687/2011, 15689/2011, 15691/2011, 15692/2011, 15693/2011, 31233/2008,

31182/2008, 31184/2008 & 31185/2008

(GM-MM-S)

-: 3 :-

IN W.P.No.2642/2009

BETWEEN:

NATIONAL MINERAL DEVELOPMENT CORPORATION LIMITED, NOW CALLED AS NMDC LTD., A COMPANY INCORPORATED IN THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT 10-3-311/A, CASTLE HILLS, MASAB TANK, HYDERABAD-500 028, HAVING ITS REGIONAL OFFICE AT 10/2, KASTURABA ROAD, BANGALORE-01, REPRESENTED HEREIN BY ITS REGIONAL MANAGER, K. PRAVEEN KUMAR.

... PETITIONER

(BY SRI: K. RAGHAVACHARYULU, ADVOCATE FOR D.R. RAVISHANKAR, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 & 2)

*****

-: 4 :-

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THE NOTIFICATION ANN-A THE NOTIFICATION DT.27.8.08, IS ULTRA VIRES THE PROVISION OF ARTICLE 246, ENTRY-54 OF SEVENTH SCHEDULE, LIST I-UNION LIST OF CONSTITUTION OF INDIA, THE KARNATAKA FOREST ACT 1963 AND THE PROVISIONS OF THE FOREST [CONSERVATION] ACT 1980 [CENTRAL ACT].

IN W.P.44793/2013

BETWEEN:

VEDANTA LIMITED, (FORMERLY KNOWN AS SESA GOA LIMITED), REGD. OFFICE AT P.O. BOX 125, SESAGHOR, 20, EDC COMPLEX, PATTO, PANJIM, GOA-403 001. REP. BY ITS ASSOCIATE VICE PRESIDENT – KARNATAKA, SRI. VIVEK MISHRA.

... PETITIONER

(AMENDED V.C.O. DT.29/09/2015)

(BY SRI: UDAYA HOLLA, SENIOR ADVOCATE, FOR K.N.PHANINDRA, ADVOCATE)

AND:

-: 5 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DTD.18.9.2013 VIDE ANNEX-A & THE DEMAND NOTICE DTD.21.9.2013 VIDE ANNEX-A1, BOTH ISSUED BY THE R4, AND ALL FURTHER PROCEEDINGS THERETO AND ETC.,

IN W.P.No.13595/2008

BETWEEN:

VEDANTA LIMITED, P.O. BOX 125, SESAGHOR, 20, EDC COMPLEX, PATTO, PANJIM, GOA-403 001, REP. BY ITS COMPANY SECRETARY, SRI. C.D. CHITNIS.

... PETITIONER

(AMENDED V.C.O. DT.29/09/2015)

-: 6 :-

(BY SRI: UDAYA HOLLA, SENIOR ADVOCATE FOR SRI. K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO 4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT. 16.8.2008 ISSUED BY THE R1 AND PUBLISHED IN THE GAZETTE ON 27.8.2008 VIDE ANNEXURE E AND THE MEMORANDUM/COMMON ORDER DT. 30.9.2008 ISSUED BY THE R4 VIDE ANNEXURE G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

-: 7 :-

IN W.P.No.13516/2008

BETWEEN:

SRI. R. PRAVEENCHANDRA, S/O LATE SRI. E. RAMAMURTHY, AGED ABOUT 35 YEARS, R/O NO.59, 12TH MAIN, (OLD 24TH MAIN), SRINAGAR, BANASHANKARI I STAGE, I BLOCK, BANGALORE-560 050. ... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO 4) *****

-: 8 :-

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT. 16.8.2008 ISSUED BY THE R1 AND PUBLISHED IN THE GAZETTE ON 27.8.2008 VIDE ANNEXURE E AND THE MEMORANDUM/COMMON ORDER DT. 30.9.2008 ISSUED BY THE R4 VIDE ANNEXURE G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.13654/2008

BETWEEN:

-: 9 :-

BY ITS VICE PRESIDENT MR. K.R.M. REDDY.

-: 10 :-

REP. BY ITS MANAGING PARTNER MR. ASLAM PASHA.

... PETITIONERS

(PETITIONER NOs.3 TO 8 DELETED. AMENDED V.C.O. DT.31/10/2008)

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE, FOR SMT. S.R. ANURADHA, ADVOCATE)

AND:

(R.5 & 6 DELETED V.C.O. DT. 31/10/2008)

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO 4)

-: 11 :-

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16.8.2008, ISSUED BY THE R1, AND PUBLISHED IN THE GAZETTE ON 27.8.2008, VIDE ANN-G AND THE MEMORANDUM / COMMON ORDER DT.30.9.2008, AND DT,12.9.2008 ISSUED BY THE R4 AND R6 VIDE ANN-H AND H1, AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

IN W.P.No.13803/2008

BETWEEN:

M/S. CANARA MINERALS PRIVATE LIMITED, A COMPANY REGISTERED UNDER THE COMPANIES ACT, HAVING ITS OFFICE AT #4, 1ST MAIN ROAD, 60 FT. ROAD, AMRAJYOTHI LAYOUT, SANJAYANAGAR, BANGALORE-560 094, REPRESENTED BY ITS MANAGING DIRECTOR SRI. ANIL H. LAD.

... PETITIONER

(BY SRI: L.M. CHIDANANDAYYA, ADVOCATE)

AND:

-: 12 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE IMPUNGED NOTIFICATION DT.16.8.2008, THE LETTER DT.23.8.2008, COMMUNICATION DT.30.9.2008, AND THE COMMUNICATION DT.22.10.08, WHICH ARE PRODUCED AS ANN-A, B, C AND D RESPECTIVELY AND ETC.,

IN W.P.No.14157/2008

BETWEEN:

THE STATE TRADING CORPORATION OF INDIA LTD., ‘CHANDRAKIRAN’ II FLOOR, 10/A, KASTURBA ROAD, BANGALORE-560 001, REPRESENTED BY BRANCH MANAGER D. PUSHPARAJ.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE WITH SMT. S.R. ANURADHA, ADVOCATE)

AND:

-: 13 :-

ECOLOGY AND ENVIRONMENT, M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE-560 001.

.. RESPONDENTS

(R3 & R4 DELETED V.C.O. DT.13/11/2008)

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R.1 & R.2)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT SECTION 98A OF THE KARNATAKA FOREST ACT 1993 AND NOTIFICATION DT. 16.8.2008 PUBLISHED IN THE OFFICIAL GAZETTE ON 27.8.2008 VIDE ANNEXURE B DOES NOT APPLY TO CENTRAL GOVERNMENT CORPORATIONS AND TRADING CORPORATIONS RESPECTIVELY, THEREFORE RESPONDENTS ARE NOT ENTITLED TO DEMAND AND COLLECT FOREST DEVELOPMENT TAX BY THE PETITIONER CORPORATION AND ETC.,

-: 14 :-

IN W.P.No.14802/2008

BETWEEN:

SRI. ALLAM VEERABHADRAPPA, S/O ALLAM KARIBASAPPA, AGED ABOUT 60 YEARS, RESIDING AT NO.815/8A, RAYARA ANUGRAHA, 3RD CROSS, 2ND STAGE, SUBRAMANYA NAGAR, BANGALORE-03.

... PETITIONER

(BY SRI: K.N. SRINIVASA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

-: 15 :-

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT. 16.08.2008 ISSUED BY THE R1 AND PUBLISHED IN THE GAZETTE ON 27.08.2008 VIDE ANX-F AND THE MEMORANDUM/COMMON ORDER DT. 30.09.2008 ISSUED BY THE R4 VIDE ANX-H AND ALL THE FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.30927/2008

BETWEEN:

SINCE DEAD BY L.R B. RUDRAGOUDA S/O LATE B. KUMARAGOUDA, AGED ABOUT 38 YEARS, NO.2198, BKG HOUSE, KHB COLONY, SANDUR-583 119, BELLARY DISTRICT. (AMENDED V.C.O. DT.29/09/2015)

-: 16 :-

AGED ABOUT 56 YEARS, R/O NO.168/C, 18TH WARD, 3RD CROSS, GANDHINAGAR, BELLARY.

... PETITIONERS

(BY SRI: S. GANESH, SENIOR ADVOCATE WITH SRI. K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

-: 17 :-

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY R-1 VIDE ANNEXURE- E AND THE ORDER DT. 12/9/2008 ISSUED BY R-4 VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO AND ETC.,

IN W.P.No.30928/2008

BETWEEN:

-: 18 :-

REP. BY ITS PARTNER MR. SYED AHAMED, S/O SRI. S.A. THAWAB.

... PETITIONERS

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY R-1 VIDE ANNEXURE- E AND THE ORDER DT.12/9/2008 ISSUED BY R-4 VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO AND ETC.,

-: 19 :-

IN W.P.No.30995/2008

BETWEEN:

M/S. LAKSHMINARAYANA MINING COMPANY, REGISTERED PARTNERSHIP FIRM, REPRESENTED BY ITS PARTNER, SRI. D.N. GOPALAKRISHNA, KARDIKOLLA IRON ORE MINES, N.E.B. RANGE, SIDDAPUR VILLAGE, SANDUR TALUK, BELLARY DISTRICT, HAVING ITS REGISTERED OFFICE AT NO.33, SANNIDHI ROAD, BASAVANAGUDI, BANGALORE-560 004.

... PETITIONER

(BY SRI: UDAYA HOLLA, SENIOR ADVOCATE WITH SRI. K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

-: 20 :-

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY R-1 VIDE ANNEXURE- E AND THE ORDER DT.12/9/2008 ISSUED BY R-4 VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO AND ETC.,

IN W.P.31128/2008

BETWEEN:

SRI. V.N.K. MENON, S/O SRI. S.K. NAIR, AGED 6 YEARS, FLAT NO.704-A, “PURVA HEIGHTS”, BANNERGHATTA ROAD, BELAKKIHALLI POST, BANGALORE-560 076, HAVING MINES OFFICE AT NO.6, KHB COLONY, SANDUR-583 119, BELLARY DISTRICT.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 21 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DATED 16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31129/2008

BETWEEN:

M/S. S.B. MINERALS, (A REGISTERED PARTNERSHIP FIRM), K.R.ROAD, HOSPET-583 201, BELLARY DISTRICT, REP. BY ITS MANAGING PARTNER, SRI. B.P. ANAND KUMAR.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

-: 22 :-

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GEZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

-: 23 :-

IN W.P.No.31141/2008

BETWEEN:

M/S. P. BALASUBBA SETTY & SONS, HOSPET, (A REGISTERED PARTNERSHIP FIRM), P.B.NO-3, HAMPI ROAD, HOSPET - 583 201, BELLARY DISTRICT, REP. BY ITS MANAGING PARTNER, SRI. P. SHANKAR SETTY.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE) *****

-: 24 :-

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31142/2008

BETWEEN:

SMT. K.M. PARVATHAMMA, W/O LATE SRI. K.M. RUDRAIAH, R/O PARVATHINAGAR, BELLARY-583 101, (PETITIONER IS NOT CLAIMING SENIOR CITIZEN BENEFIT).

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 25 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO 4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31143/2008

BETWEEN:

M/S. H.R. GAVIAPPA & CO.,

(A REGISTERED PARTNERSHIP FIRM), PARVATHINAGAR, BELLARY-583 101, REP. BY ITS MANAGING PARTNER, SRI. H.G. RANGANGOUD.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 26 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31144/2008

BETWEEN:

M/S ASSOCIATED MINING COMPANY, NO.XVIII/35, II LINK ROAD, PARVATHINAGAR, BELLARY-583 103, REPRESENTED BY ITS DIRECTOR SMT. K.M. PARVATHAMMA.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

-: 27 :-

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

-: 28 :-

IN W.P.No.31145/2008

BETWEEN:

SMT. R. MALLAMMA, W/O LATE SRI. R. PAMPAPATHY, AGED ABOUT 68 YEARS, R/O. NO.151, "RAJAPURA NILAYA", 24TH WARD, BELLARY ROAD, HOSPET - 583 201, BELLARY DISTRICT.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

-: 29 :-

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31146/2008

BETWEEN:

VEERABHADRAPPA SANGAPPA & CO., (A REGISTERED PARTNERSHIP FIRM), REP. BY ITS PARTNER, SRI. K.S. RAVI, NO.2/138, BELLARY ROAD,

SANDUR-583 119, BELLARY DISTRICT.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 30 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31147/2008

BETWEEN:

SRI. H.G. RANGANGOUD, S/O SRI. H.R. GAVIAPPA, AGED ABOUT 69 YEARS, R/O. NO.142, WARD NO.15, N.C.COLONY, HOSPET-583 203, BELLARY DISTRICT.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 31 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31148/2008

BETWEEN:

M/S. THE SANDUR MANGANESE & IRON ORES LTD., REP. BY ITS COMPANY SECRETARY, SRI. MOHAMMED ABDUL SALEEM, NO.217, BELLARY ROAD, SADASHIVNAGAR, BANGALORE-560 080.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

-: 32 :-

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

-: 33 :-

IN W.P.No.31149/2008

BETWEEN:

M/S. NADEEM MINERALS, (A REGISTERED PARTNERSHIP FIRM), NO.419, GROUND FLOOR, 6TH B CROSS, 20TH MAIN, 6TH BLOCK, KORAMANGALA, BANGALORE–560 095, REP. BY ITS MANAGING PARTNER, SRI. S.M. FAISAL, S/O. ZIAULLA SHARIFF, AGED ABOUT 33 YEARS.

... PETITIONER

(BY SRI: K.N.PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

-: 34 :-

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31152/2008

BETWEEN:

TUNGABHADRA MINERALS PVT. LTD., TUNGABHADRA SPECIAL PRODUCTS, #322/3, 2ND FLOOR, SREE SAPTAGIRI ENCLAVE, COLLEGE ROAD, HOSPET-583 201, BELLARY DISTRICT, REPRESENTED BY ITS AUTHORISED REPRESENTATIVE AND SENIOR GENERAL MANAGER SRI. B. RAMASUBBA REDDY.

... PETITIONER

(BY SRI: ARAVIND D.KULKARNI AND SRI.K.N.SRINIVASA, ADVOCATES)

AND:

-: 35 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT:16-08-2008 ISSUED BY THE R-1 AND PUBLISHED IN THE GAZETTE ON 27-08-2008 VIDE ANNEXURE- A AND ALL FURTHER PROCEEDINGS THERETO INCLUDING DIRECTION ISSUED BY R-1 TO R-2 DT:23-08-2008 VIDE ANNEXURE-B AND THE ORDER DT:12-09-2008 ISSUED BY R-4 VIDE ANNEXURE-C AND ETC.,

IN W.P.No.31181/2008

BETWEEN:

A COMPANY REGISTERED UNDER THE

COMPANIES ACT HAVING ITS

OFFICE AT NO.60/356-A,

HOSPET ROAD, ALLIPURA, BELLARY-04,

-: 36 :-

REP. BY ITS GENERAL MANAGER SRI. D.V. MAHESH KUMAR, AGED ABOUT 39 YEARS.

NO.7/19, KANAKA STREET,

COWL BAZAAR, BELLARY-583 102,

REP. BY ITS GENERAL MANAGER

SRI. D.V. MAHESH KUMAR,

AGED ABOUT 39 YEARS.

... PETITIONERS

(BY SRI: K.G. RAGHAVAN, SENIOR ADVOCATE FOR SRI. M.M. SWAMY, ADVOCATE)

AND:

DEPT. OF FOREST, ECOLOGY & ENVIRONMENT,

M.S. BUILDING, DR. AMBEDKAR ROAD,

BANGALORE-560 001.

18TH CROSS, MALLESWARAM,

BANGALORE-560 003.

BELLARY CIRCLE,

BELLARY.

BELLARY DIVISION,

BELLARY.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

-: 37 :-

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/08/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-D AND QUASH THE ORDERS DATED 12/9/2008 AND 22-10-2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-F & F1 IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31183/2008

BETWEEN:

-: 38 :-

SRI. K.R.M. REDDY, AGED ABOUT 51 YEARS.

... PETITIONERS

(BY SRI: K.G. RAGHAVAN, SENIOR ADVOCATE, FOR SRI. M.M. SWAMY, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

-: 39 :-

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-D AND QUASH THE ORDERS DATED 12/9/2008 AND 22/10/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE- F & F1 IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31188/2008

BETWEEN:

BALAJI MINES & MINERALS PVT. LTD., #322/3, 2ND FLOOR, SREE SAPTAGIRI ENCLAVE, COLLEGE ROAD, HOSPET-583 201, BELLARY DISTRICT. REP.BY ITS AUTHORISED REPRESENTATIVE AND SENIOR GENERAL MANAGER SRI. B. RAMASUBBA REDDY.

... PETITIONER

(BY SRI: BRIJESH PATIL, ADVOCATE)

AND:

-: 40 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-A AND ALL FURTHER PROCEEDINGS THERETO INCLUDING DIRECTION ISSUED BY RESPONDENT NO.1 TO RESPONDENT NO.2 DATED: 23-08-2008 VIDE ANNEXURE-B AND THE ORDER DT: 12-9-2008 ISSUED BY R-4 VIDE ANNEXURE-C AND ETC.,

IN W.P.No.31189/2008

BETWEEN:

AURO MINERALS, #322/3, 2ND FLOOR, SREE SAPTAGIRI ENCLAVE, COLLEGE ROAD, HOSPET-583 201, BELLARY DISTRICT, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE AND SENIOR GENERAL MANAGER SRI. B. RAMASUBBA REDDY.

... PETITIONER

(BY SRI: BRIJESH PATIL, ADVOCATE)

-: 41 :-

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R5) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-A AND ALL FURTHER PROCEEDINGS THERETO INCLUDING DIRECTION ISSUED BY RESPONDENT NO.1 TO RESPONDENT NO.2 DATED: 23-08-2008 VIDE ANNEXURE-B AND THE ORDER DT: 12-9-2008 ISSUED BY R-4 VIDE ANNEXURE-C AND NOTICE DT: 23-10-2008 VIDE ANNEXURE-J AND ETC.,

-: 42 :-

IN W.P.No.31191/2008

BETWEEN:

M/S KUMARASWAMY MINERAL EXPORTS, NO.87, S.V.COLONY, NEAR KUMARASWAMY TEMPLE, CLUB ROAD, BELLARY-583 104, REP. BY ITS MR. VIJAY KUMAR, GENERAL MANAGER.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE FOR SMT. S.R. ANURADHA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

-: 43 :-

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-F AND THE MEMORANDUM/COMMON ORDER DATED 12/9/2008 ISSUED BY THE 3RD AND 4TH RESPONDENT VIDE ANNEXURE-H AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31227/2008

BETWEEN:

SRI. R. CHARU CHANDRA S/O DR. NAGAN GOWDA, AGE 46 YEARS, R/O DR. NAGAN GOWDA GARDENS, STATION ROAD, HOSPET-583 201, BELLARY DISTRICT.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 44 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31228/2008

BETWEEN:

M/S. GOGGA GURUSANTHIAH & BROS.,

(A REGD. PARTNERSHIP FIRM),

NEHRU CO-OPERATIVE COLONY,

HOSPET-583 203,

BELLARY DISTRICT,

REPRESENTED BY ITS PARTNER,

SRI. G. SARABHIAH.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 45 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31229/2008

BETWEEN:

M/S. TRIMEX INDUSTRIES LTD., “SAPTHAGIRI ENCLAVE”, NO.322/2, 3RD FLOOR, COLLEGE ROAD, HOSPET-583 201, BELLARY DISTRICT, REP. BY ITS GENERAL MANAGER, SRI. G.S. KULKARNI.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

-: 46 :-

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 12/9/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

-: 47 :-

IN W.P.No.31230/2008:

BETWEEN:

M/S. SAMEERA TRADING COMPANY, (A REGD. PARTNERSHIP FIRM), EMBITEE COMPLEX, BELLARY ROAD, HOSPET-583 201, BELLARY DISTRICT, REP. BY ITS MANAGING PARTNER, SRI. H. SAJJAD WAHAB.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

-: 48 :-

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DATED 25/10/2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31234/2008

BETWEEN:

M/S. NIDHI MINING PVT. LTD., REP. BY ITS DIRECTOR, SRI. BABULAL .A. SINGVI, S/O SRI. AMAR CHAND SINGVI, AGED ABOUT: 54 YEARS, HAVING OFFICE AT NO.106, VIJAYASHREE NILAYAM JAYANAGAR, CANTONMENT, BELLARY TOWN, BELLARY DISTRICT, BELLARY.

... PETITIONER

(BY SRI: L.M. CHIDANANDAYYA, ADVOCATE)

AND:

-: 49 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED NOTIFICATION DT.16/8/2008 THE LETTER DT: 23/8/2008 AND THE COMMUNICATION DT: 12/9/2008 WHICH ARE PRODUCED AS ANNEXURES 1, B & C RESPECTIVELY AND ETC.,

IN W.P.No.31235/2008

BETWEEN:

M/S. MARWA MINING COMPANY, A PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER, PARTNER: SRI. D.M. ISMAIL, AGED 45 YEARS, S/O D.M. UMARSAB, NO.687/17, MASHA ALLAH, UMAR MANZIL, KUDLIGI-583 135, BELLARY DISTRICT.

... PETITIONER

(BY SRI: L.M. CHIDANANDAYYA, ADVOCATE)

AND:

-: 50 :-

SECRETARY TO THE GOVERNMENT, DEPARTMENT OF FORESTS, ECOLOGY AND ENVIRONMENT, M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE-560 001.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE for R1 to R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED NOTIFICATION DT.16/8/2008 THE LETTER DT:23/8/2008 AND THE COMMUNICATION DT:12/9/2008 WHICH ARE PRODUCED AS ANNEXURES A, B & C RESPECTIVELY AND ETC.,

IN W.P.No.31266/2008

BETWEEN:

M/S M. HANUMANTH RAO, REP. BY SHAMSUNDER CHIRANIA, S/O SAGARMAL CHIRANIA, AGE: 67 YEARS, R/O H. NO.37, W.NO. 17,

-: 51 :-

GROUND FLOOR, MAIN ROAD, NEAR PARK, PATEL NAGAR, BELLARY, DIST: BELLARY. (SENIOR CITIZEN BENEFIT NOT CLAIMED)

... PETITIONER

(BY SRI: LAXMINARAYANA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY R-1 AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DT.12/9/2008 ISSUED BY R-4 VIDE ANNEXURE-G AND ALL FURTHER PROCEEDINGS THERETO AND ETC.,

-: 52 :-

IN W.P.No.31327/2008

BETWEEN:

M/S. B. ASHWATHNARAYANA SINGH & CO., NO.54, 3RD MAIN ROAD, PARVATHINAGAR, BELLARY, REPRESENTED BY: B. ANOOP KUMAR PARTNER.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR COUNSEL FOR MRS. S.R. ANURADHA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE for R1 to R4)

*****

-: 53 :-

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY R-1 AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-F AND THE MEMORANDUM/COMMON ORDER DT.12/9/2008 ISSUED BY R-3 AND R-4 VIDE ANNEXURE-H AND THE CORRIGENDUM DT.22/10/2008 VIDE ANNEXURE-J AND ALL FURTHER PROCEEDINGS THERETO AND ETC.,

IN W.P.No.31439/2008

BETWEEN:

M/S. GADAGI MINERAL MINING CO., GADAGI PALACE , CAR STREET, BELLARY-583 101, REP. BY ITS MANAGING PARTNER, SRI. ALLAM BASAVARAJ.

... PETITIONER

(BY SRI: K.N. SRINIVASA, ADVOCATE)

AND:

-: 54 :-

BELLARY DIVISION, BELARY.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY R-1 VIDE ANNEXURE- F AND THE MEMORANDUM/COMMON ORDER DATED 12/9/2008 ISSUED BY R-4 VIDE ANNEXURE-H AND ALL THE FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31577/2008

BETWEEN:

SMT. SHANTHALAKSHMI JAYARAM, W/O LATE SRI. V.N. JAYARAM, AGED ABOUT 54 YEARS, R/O NO.49, VINAG MANSION, CANTONMENT, HOSPET TALUK, BELLARY DISTRICT.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 55 :-

18TH CROSS, MALLESWARAM, BANGALORE-560 003.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY R-1 AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-E AND THE ORDER DT.12/9/2008 ISSUED BY R-4 VIDE ANNEXURE-G AND THE CORRIGENDUM DT.22/10/2008 VIDE ANNEXURE-H ISSUED BY R-4 TO THE IMPUGNED ORDER IN SO FAR M.L.NO.2553 OF THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.368/2009

BETWEEN:

SHRI.DASARATHRAMI REDDY S/O M. NARASI REDDY, AGE 67 YEARS, SRI. KRISHNA GARDENIA APARTMENTS, FLAT NO.3, GROUND FLOOR 559, 5TH MAIN ROAD, RMV 2ND STAGE, NEW BEL ROAD, NEXT TO SCIENTIFIC NURSERY, BANGALORE-560 094.

... PETITIONER

-: 56 :-

(BY SRI: BRIJESH PATIL, ADVOCATE FOR M/s. BASAVA PRABHU S PATIL ASSOCIATES, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16.8.2008 ISSUED BY THE R1, & PUBLISHED IN THE GAZETTE ON 27.8.2008, VIDE ANN-B & ALL FURTHER PROCEEDINGS THERETO INCLUDING DIRECTION ISSUED BY THE R1, TO R2 DT.23.8.2008, VIDE ANN-C, AND THE ORDER DT.22.10.08, ISSUED BY THE R4, VIDE ANN-D AND ETC.,

-: 57 :-

IN W.P.No.863/2009

BETWEEN:

M/S. MILAN MINERALS PVT. LTD., THERMIT ALLOYS COMPOUND, NO.7, INDUSTRIAL ESTATE, B.H. ROAD, SHIMOGA-577 204, REPTD. BY ITS DIRECTOR, MR. A.D. MONTEIRO.

... PETITIONER

(BY SRI: K.N. SRINIVASA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

-: 58 :-

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT. 16.8.2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27.8.2008 VIDE ANNEXURE-F AND THE MEMORANDUM/ COMMON ORDER DT. 22.10.2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEX- H AND ALL THE FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.6721/2009

BETWEEN:

H.N. PREMAKUMAR, AGED ABOUT 66 YEARS, S/O LATE H.N.N. SETTY, R/AT NO.35, 3RD CROSS, 3RD MAIN, HIG COLONY, BENGALURU-94. ... PETITIONER

(BY SRI: RAVI L.VAIDYA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE R1 & 2)

*****

-: 59 :-

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16.8.2008, AT ANN-A, AND THE CONSEQUENT NOTICE ISSUED BY THE R2, VIDE CIRCULAR DT.12.9.2008, AND CORRIGENDUM DT.22.10.2008, AT ANN-B AND ETC.,

IN W.P.No.10712/2009

BETWEEN:

SRI. S.A. THAWAB, S/O SRI. ABDUL SALAAM, AGED ABOUT 75 YEARS, R/O COWL BAZAAR, BELLARY.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

-: 60 :-

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT. 16.8.2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27.8.2008 VIDE ANNEX-E AND THE ORDER DT. 12.9.2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEX-G AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.16237/2009

BETWEEN:

M/S. DRUVDESH META STEEL PVT. LTD., NO.1 AND 18, SHANKAR HOUSE, 1ST FLOOR, RMV EXTENSION, MEKHRI CIRCLE, BANGALORE, REPRESENTED BY ITS TECHNICAL DIRECTOR, T.R.R. RAO, AGED 67 YEARS.

... PETITIONER

(BY SRI: K.SHASHI KIRAN SHETTY, SENIOR COUNSEL WITH MISS. FARAH FATHIMA, ADVOCATE)

AND:

-: 61 :-

18TH CROSS, MALLESWARAM, BANGALORE-560 003.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATES FOR R5) *****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT. 16.8.2008 ISSUED BY THE R1 AND PUBLISHED IN THE GAZETTE ON 27.08.2008 VIDE ANX-A.

IN W.P.No.35251/2009

BETWEEN:

STEEL AUTHORITY OF INDIA LIMITED, VISVESVARAYA IRON AND STEEL PLANT, BHADRAVATHI - 577 301, INCORPORATED UNDER COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT ISPAT BHAVAN, LODHI ROAD, NEW DELHI – 110 003, REPRESENTED BY SHRI. H.N. VENKATESH, S/O H.D. NAGAPPA GOWDA,

-: 62 :-

HINDU, AGED 50 YEARS, RESIDENT OF BHADRAVATHI, GENERAL MANAGER (LAW) & THE GPA OF ITS CHIEF EXECUTIVE/EXECUTIVE DIRECTOR.

... PETITIONER

(BY SRI: K. SACHINDRA KARANTH, ADVOCATE)

AND:

REPRESENTED BY ITS SECRETARY,

DEPARTMENT OF MINES & GEOLOGY,

M.S. BUILDING,

BANGALORE-560 001.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT

-: 63 :-

THE PETITIONER IS NOT LIABLE TO PAY ANY FOREST DEVELOPMENT TAX AND ETC.,

IN W.P.No.60230/2009

BETWEEN:

BELLARY MINING CORPORATION LTD., REPRESENTED BY ITS PARTNER, SRI. SRINIVAS REDDY, AGED MAJOR, NO. 123, VEERANNA GOWDA COLONY, CLUB ROAD, BELLARY.

... PETITIONER

(BY SRI: Y. LAKSHMIKANT REDDY, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL

-: 64 :-

AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY R-1 AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-D AND THE ORDER DT.12/9/2008 ISSUED BY R-4 VIDE ANNEXURE-F AND ALL FURTHER PROCEEDINGS PURSUANT THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.15782/2010

BETWEEN:

M/S. B. ASHWATHNARAYANA SINGH & CO., NO.54, 3RD MAIN ROAD, PARVATHINAGAR, BELLARY, REPRESENTED BY: B. ANOOP KUMAR, PARTNER.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE FOR SRI. ANIRUDH ANAND, ADVOCATE)

AND:

-: 65 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 06.04.2010 VIDE ANNEXURE 'G'.

IN W.P.No.15795/2010

BETWEEN:

S.V. SRINIVASULU, S/O LATE S.V. CHETTY, AGED 60 YEARS, OLD INCOME TAX OFFICE BUILDING, NEAR SHANKARI KALYANAMANTAPA, N.C. COLONY, HOSPET-583 203, BELLARY DISTRICT, KARNATAKA STATE.

... PETITIONER

(BY SRI: K.B. SHIVA KUMAR, ADVOCATE)

AND:

-: 66 :-

DR. AMBEDKAR VEEDHI, BANGALORE-560 001.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE) *****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 23.04.2010 VIDE ANNEXURE G AND ETC.,

IN W.P.No.15809/2010

BETWEEN:

M/S. NADEEM MINERALS, NO.419, GROUND FLOOR, 6TH B CROSS, 20TH MAIN, 6TH BLOCK, KORAMANGALA, BANGALORE-560 095, REPRESENTED BY ITS MANAGING PARTNER, SRI. S.M. FAISAL S/O ZIAULLA SHARIFF, AGED ABOUT 35 YEARS.

... PETITIONER

-: 67 :-

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 23.4.2010 VIDE ANNEXURE-G AND ETC.,

-: 68 :-

IN W.P.Nos.15825-15826/2010

BETWEEN:

VEERABHADRAPPA SANGAPPA & CO., (A REGISTERED PARTNERSHIP FIRM), REP. BY ITS PARTNER, SRI. K.S. RAVI, NO.2/138, BELLARY ROAD, SANDUR-583 119, BELLARY DISTRICT.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

-: 69 :-

THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 23.4.2010 VIDE ANNEXURE-F AND DATED 26.1.2010 VIDE ANNEXURE-G AND ETC.,

IN W.P.No.15953/2010

BETWEEN:

M/S.HOTHUR TRADERS, REP. BY ITS MANAGING PARTNER, SRI. MD. IQBAL HOTHUR, AGE 52 YEARS, NO.5,6,7 & 8, BESIDE NANDI SCHOOL, INFANTRY ROAD, CANTONMENT, BELLARY.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

-: 70 :-

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 15.03.2010 VIDE ANNEXURE F AND ETC.,

IN W.P.No.15954/2010

BETWEEN:

M/S. MEHBOOB TRANSPORT COMPANY, REP. BY ITS MANAGING PARTNER SIR. MD. IQBAL HOTHUR, AGE 52 YEARS, NO. 5,6,7 & 8, BESIDE NANDI SCHOOL, INFANTRY ROAD, CANTONMENT, BELLARY.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 71 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 15.03.2010 VIDE ANNEXURE F AND ETC.,

IN W.P.No.15984/2010

BETWEEN:

M/S. BHARAT MINES & MINERALS, SINGHI SADAN, INFANTRY ROAD, BELLARY-583 104, REP. BY ITS D.G.M. - PUBLIC RELATIONS, MR. SILAS NERELLA, S/O LATE SRI. H.S. NERELLA, AGED ABOUT 40 YEARS.

... PETITIONER

(BY SRI: S.GANESH, SENIOR COUNSEL ALONG WITH SRI. K.N. PHANINDRA, ADVOCATE)

AND:

-: 72 :-

ECOLOGY AND ENVIRONMENT, M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE-560 001.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 15.03.2010 VIDE ANNEXURE F AND ETC.,

IN W.P.No.15985/2010

BETWEEN:

SRI. M. SRINIVASULU, S/O LATE SRI. VENKATASWAMY, AGED ABOUT 56 YEARS, R/O NO.168/C, 18TH WARD, 3RD CROSS,

-: 73 :-

GANDHINAGAR, BELLARY.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 15.3.2010 VIDE ANNEXURE-F AND ETC.,

-: 74 :-

IN W.P.No.15990/2010

BETWEEN:

M/S. S.B. MINERALS, (A REGISTERED PARTNERSHIP FIRM), K.R. ROAD, HOSPET-583 201, BELLARY DISTRICT, REP. BY SRI. C. KUMARASWAMY SETTY. ... PETITIONER

(BY SRI: D.L.N.RAO, SENIOR ADVOCATE FOR SRI ANIRUDH ANAND, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

-: 75 :-

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE ISSUED BY THE 4TH RESPONDENT DATED 15.03.2010 VIDE ANNEXURE F AND ETC.,

IN W.P.No.15991/2010

BETWEEN:

M/S KARIGANUR MINERAL MINING INDUSTRY, REP. BY IT’S ASSISTANT GENERAL MANAGER, SRI. B.F. SHARIFF, EMBITEE COMPLEX, BELLARY ROAD, HOSPET.

... PETITIONER

(BY SRI: D.L.N.RAO, SENIOR ADVOCATE FOR SRI ANIRUDH ANAND, ADVOCATE)

AND:

... RESPONDENTS

-: 76 :-

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE ISSUED BY THE 4TH RESPONDENT DATED 15.03.2010 VIDE ANNEXURE F AND ETC.,

IN W.P.No.16145/2010

BETWEEN:

M/S. GOGGA GURUSANTHIAH & BROS, (A REGD. PARTNERSHIP FIRM), NEHRU CO-OPERATIVE COLONY, HOSPET-583 203, BELLARY DISTRICT, REPRESENTED BY ITS PARTNER, SRI. G. SARABHIAH.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 77 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 15.3.2010 VIDE ANNEXURE-F AND ETC.,

IN W.P.No.16144/2010

BETWEEN:

SMT. K.M. PARVATHAMMA, W/O LATE SRI. K M RUDRAIAH, AGED ABOUT 67 YEARS, R/O PARVATHINAGAR, BELLARY-583 101.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 78 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 15.3.2010 VIDE ANNEXURE-F AND ETC.,

IN W.P.No.16147/2010

BETWEEN:

-: 79 :-

WORK OFFICE AT VIJAYNAGAR WORKS, P.O. VIDYANAGAR, TORANGALLU, BELLARY-583 275.

... PETITIONERS

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE FOR SMT. S.R. ANURADHA, ADVOCATE)

AND:

... RESPONDENTS

-: 80 :-

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE, FOR R.1 TO R.4, SRI.A.K.VASANTH AND SRI. M.K.GIRISH, ADVOCATES FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE STATE GOVERNMENT HAS NO COMPETENCE TO LEVY, DEMAND AND COLLECT FDT UNDER SEC:98-1 OF THE KARNATAKA FOREST ACT 1963 ON MINERALS EXTRACTED AND SOLD/PURCHASED AND ETC.,

IN W.P.No.17000/2010

BETWEEN:

M/S. S.B. MINERALS, (A REGISTERED PARTNERSHIP FIRM), REP. BY ITS MANAGING PARTNER, SRI. B.S. DEEPAK SINGH, P.B. NO.58, K.R. ROAD, HOSPET-583 201, BELLARY DISTRICT.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 81 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 15.3.2010 ISSUED BY THE R4 VIDE ANNEXURE-G AND ETC.,

IN W.P.No.17001/2010

BETWEEN:

SRI. H.G. RANGANGOUD, S/O SRI. H.R. GAVIAPPA, AGED ABOUT 71 YEARS, R/O. NO.142, WARD NO.15, N.C.COLONY, HOSPET-583 203, BELLARY DIST.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

-: 82 :-

DEPARTMENT OF FOREST, ECOLOGY AND ENVIRONMENT, M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE-560 001.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 06.04.2010 ISSUED BY THE R4 VIDE ANNEXURE-H AND ETC.,

IN W.P.No.17002/2010

BETWEEN:

M/S. V.S. LAD & SONS, (A REGISTERED PARTNERSHIP FIRM), ‘PRASHANTI NIVAS’, KRISHNANAGAR, SANDUR-583 119, BELLARY DISTRICT, REP. BY ITS PARTNER. SRI. SANTHOSH S LAD.

... PETITIONER

-: 83 :-

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 15.03.2010 ISSUED BY THE R4 VIDE ANNEXURE-G AND ETC.,

-: 84 :-

IN W.P.No.17087/2010

BETWEEN:

M/S. RAJMAHAL SILKS, (A REGISTERED PARTNERSHIP FIRM) NO.48/1, SANJEEVAPPA LANE, AVENUE ROAD CROSS, BANGALORE-560 002, REP. BY ITS PARTNER, SRI. ASLAM PASHA.

... PETITIONER

(BY SRI: S.H.RAGHAVENDRA AND SRI.K.N.PHANINDRA, ADVOCATES)

AND:

... RESPONDENTS

-: 85 :-

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4, SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 15/4/2010 VIDE ANNEXURE 'J' AND THE DEMAND NOTICE DTD 15/5/2010 VIDE ANNEXURE 'J1' BOTH ISSUED BY THE R5 AND ETC.,

IN W.P.No.17455/2010

BETWEEN:

M/S. KEJ MINERALS PVT. LTD., NO.17, RAGHAVENDRA LAYOUT, ‘D’ BLOCK, YESWANTHAPURA, OPP. MEI, TUMKUR ROAD, BANGALORE-560 002, REP. BY ITS DIRECTOR, SRI. ARUN KEJRIWAL.

... PETITIONER

(BY SRI: S.H.RAGHAVENDRA AND SRI.K.N.PHANINDRA, ADVOCATES)

AND:

-: 86 :-

(GOVERNMENT OF KARNATAKA UNDERTAKING), REP. BY ITS MANAGING DIRECTOR, NO.39, MAHATMA GANDHI ROAD, BANGALORE-560 001.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DTD 15.5.2010 VIDE ANENX-J ISSUED BY THE R5 AND ETC.,

IN W.P.No.17580/2010

BETWEEN:

M/S. VIBHUTIGUDDA MINES PVT. LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT HAVING ITS OFFICE AT NO.60.356-A, HOSPET ROAD, ALLIPURA, BELLARY-04, REP. BY ITS GENERAL MANAGER SRI. D.V. MAHESH KUMAR, AGED ABOUT 41 YEARS.

... PETITIONER

-: 87 :-

(BY SRI: K.G. RAGHAVAN, SENIOR ADVOCATE FOR SRI. M.M. SWAMY, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 23.04.2010 VIDE ANNEXURE-F TO THE WRIT PETITION AND ETC.,

-: 88 :-

IN W.P.No.17581/2010

BETWEEN:

M/S. SUGGALAMMA GUDDA MINING & CO., NO.7/19, KANAKA STREET, COWL BAZAAR, BELLARY-583 102, REP. BY ITS GENERAL MANAGER SRI. D.V. MAHESH KUMAR, AGED ABOUT 41 YEARS.

... PETITIONER

(BY SRI: K.G. RAGHAVAN, SENIOR ADVOCATE FOR SRI. M.M. SWAMY, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE) *****

-: 89 :-

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 23.04.2010 VIDE ANNEXURE F TO THE WRIT PETITION AND ETC.,

IN W.P.No.17582/2010

BETWEEN:

M/S. VIBHUTIGUDDA MINES PVT. LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT HAVING ITS OFFICE AT NO.60/356-A, HOSPET ROAD, ALLIPURA, BELLARY-04, REP. BY ITS GENERAL MANAGER SRI. D.V. MAHESH KUMAR, AGED ABOUT 41 YEARS.

... PETITIONER

(BY SRI: K.G. RAGHAVAN, SENIOR ADVOCATE FOR SRI. M.M. SWAMY, ADVOCATE)

AND:

-: 90 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 23.4.2010 VIDE ANNEXURE-F TO THE WRIT PETITION AND ETC.,

IN W.P.No.17583/2010

BETWEEN:

M/S.GAVISIDDESWARA ENTERPRISES, A COMPANY REGISTERED UNDER THE COMPANIES ACT HAVING ITS OFFICE AT MODI BHAVAN, NO.60/356-A, HOSPET ROAD, ALLIPURA, BELLARY-04, REP. BY ITS GENERAL MANAGER SRI. D.V. MAHESH KUMAR, AGED ABOUT 41 YEARS.

... PETITIONER

(BY SRI: K.G. RAGHAVAN, SENIOR ADVOCATE FOR SRI. M.M. SWAMY, ADVOCATE)

AND:

-: 91 :-

BANGALORE-560 001, REP. BY ITS PRINCIPAL SECRETARY.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE RESPONDENTS ARE NOT ENTITLED TO DEMAND AND COLLECT FOREST DEVELOPMENT TAX UNDER SECTION 98-A OF THE KARNATAKA FOREST ACT, 1963 ON THE VALUE OF MINERAL SOLD BY THE PETITIONERS IN RESPECT OF THE MINING LEASES GRANTED UNDER THE PROVISIONS OF THE MINES AND MINERALS (DEVELOPMENT AND REGULATION) ACT, 1957 AND MINERAL CONCESSION RULES, 1960 AND ETC.,

IN W.P.No.18500/2010

BETWEEN:

M/S.KALYANI STEELS LTD., HOSPET ROAD, GINIGERA, KOPPAL DISTRICT.

-: 92 :-

REPRESENTED BY ITS DIRECTOR, SRI. SHIVKUMAR KHENY.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4, SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ONLY THE

-: 93 :-

IMPOSITION OF CONDITION RELATING TO PAYMENT OF FOREST DEVELOPMENT TAX (FDT) AT THE RATE OF 12% PMT IN THE DELIVERY ORDER DATED 11.6.2010 ISSUED BY THE 5TH RESPONDENT VIDE ANNEXURE-C AND ETC.,

IN W.P.No.18952/2010

BETWEEN:

M/S. SATHYA GRANITES, PROPRIETARY CONCERN, HAVING ITS OFFICE AT PKP PLOT, NANDIHALLI, SANDUR TALUK, BELLARY DISTRICT BY ITS PROPRIETOR, SHRI. P.K. POUNRAJ.

... PETITIONER

(BY SRI: P. USMAN, ADVOCATE FOR M/S. HEGDE ASSOCIATES, ADVOCATE)

AND:

-: 94 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED NOTIFICATION DT.16.8.2008 THE LETTER DT.23.8.2008 WHICH ARE PRODUCED AS ANN-A & B RESPECTIVELY AND ETC.,

IN W.P.No.20215/2010

BETWEEN:

M/S. BAVA’S MINES & MINERALS, A PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER, SRI. MOHIDEEN BAHAVA, HAVING ITS OFFICE AT NO.113/21, GROUND FLOOR, COMMERCE CENTRE, KAVOR ROAD, KULUR, MANGALORE-575 013.

... PETITIONER

(BY SRI: L.M. CHIDANANDAYYA, ADVOCATE)

AND:

-: 95 :-

M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE-560 001.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5) *****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED NOTIFICATION DTD 16.8.2008, THE LETTER DTD 23.8.2008 WHICH ARE PRODUCED AS ANNEXS-A & B RESPECTIVELY AND ETC.,

IN W.P.No.23901/2010

BETWEEN:

M/S. SHIVASHANKAR MINERALS LTD., A COMPANY REGISTERED UNDER THE

-: 96 :-

COMPANIES ACT, 1956, NO.3, LALEHZAR APARTMENTS, 45/1-2, PALACE ROAD, BANGALORE-560 001, HAVING ITS REGISTERED OFFICE AT 8-2-276, I FLOOR, PAVANI ESTATES, ROAD NO.2, BANJARA HILLS, HYDERABAD-33, REPRESENTED BY DIRECTOR, SHIVASHANKAR REDDY.

... PETITIONER

(BY SRI: PRASHANTH KUMAR .D, ADVOCATE)

AND:

... RESPONDENTS

-: 97 :-

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5) *****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ONLY THE IMPOSITION OF CONDITION RELATING TO PAYMENT OF FOREST DEVELOPMENT TAX (FDT) AT THE RATE OF 12% PMT IN THE DELIVERY ORDER/INVOICE DATED 22.05.2010 AT ANNEXURE A, ISSUED BY THE 5TH RESPONDENT.

IN W.P.No.29222/2010

BETWEEN:

M/S.SANDUR MANGANESE AND IRON ORE LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, REPRESENTED BY ITS COMPANY SECRETARY, MD. ABDUL SALEEM, COMPANY SECRETARY, NO.217, BELLARY ROAD, SADASHIVANAGAR, BANGALORE-560 080.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE FOR SMT. S.R. ANURADHA, ADVOCATE)

AND:

-: 98 :-

18TH CROSS, MALLESWARAM, BANGALORE-560 003.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 16.4.2010 VIDE ANNEXURE-E.

IN W.P.No.32095/2010

BETWEEN:

M/S.GIMPEX LIMITED, A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND HAVING ITS OFFICE AT NEW NO.282, LINGHI CHETTY STREET, CHENNAI-600 001, REP. BY ITS DEPUTY MANAGER, SRI. K. RAJAMANI.

... PETITIONER

(BY SRI ARUN KUMAR, ADVOCATE FOR M/S.CREST LAW PARTNERS)

AND:

-: 99 :-

DEPARTMENT OF FOREST, ECOLOGY AND ENVIRONMENT, M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE-560 001.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4, SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE RESPONDENTS ARE NOT ENTITLED TO DEMAND & COLLECT FOREST DEVELOPMENT TAX UNDER THE SECTION 98A OF THE KARNATAKA FOREST ACT, 1963 ON THE VALUE OF MINERALS PURCHASED BY THE PETITIONER IN RESPECT OF THE MINING LEASE GRANTED UNDER THE PROVISIONS OF THE MMDR ACT 1957 & M.C.RULES, 1960 IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

-: 100 :-

IN W.P.No.37208/2010

BETWEEN:

M/S. BABA AKHILA SAI JYOTHI INDUSTRIES PVT. LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ITS OFFICE AT CHIKKABAGANAL VILLAGE, POST KERIKIHALLI VILLAGE-583 228, TALUK & DIST KOPPAL, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE SHRI. SURENDRA JAIN SON OF CHHAGAN MAL.

... PETITIONER

(BY SRI: L.M.CHIDANANDAYYA, ADVOCATE)

AND:

-: 101 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED NOTIFICATION DT.16.8.2008 PASSED BY THE R1, THE LETTER DT.23.8.2008 PASSED BY THE R1 TO THE R2, WHICH ARE PRODUCED AS ANN-A & B RESPECTIVELY AND ETC.,

IN W.P.No.37209/2010

BETWEEN:

M/S. BHADRASHREE STEEL & POWER LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ITS CORPORATE OFFICE AT PLOT NO.46, 2ND CROSS, "A" TEACHERS COLONY, M.P. PRAKASHNAGAR, HOSPET-583 201, REPRESENTED BY ITS AUTHORISED REPRESENTATIVE, SHRI. SURENDRA JAIN, SON OF CHHAGAN MAL.

... PETITIONER

(BY SRI: L.M. CHIDANANDAYYA, ADVOCATE)

-: 102 :-

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4, SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED NOTIFICATION DT.16.8.2008 PASSED BY THE R1, THE LETTER DT.23.8.2008 PASSED BY THE R1 TO THE R2,

-: 103 :-

WHICH ARE PRODUCED AS ANN-A & B RESPECTIVELY AND ETC.,

IN W.P.No.37210/2010

BETWEEN:

M/S. KMMI ISPAT PVT. LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGD OFFICE AT 1ST FLOOR, EMBITEE COMPLEX, BELLARY ROAD, HOSPET-583 201. REPRESENTED BY ITS AUTHORISED REPRESENTATIVE, SHRI. SURENDRA JAIN SON OF CHHAGAN MAL.

... PETITIONER

(BY SRI: L.M. CHIDANANDAYYA, ADVOCATE)

AND:

-: 104 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED NOTIFICATION DT.16.8.2008 PASSED BY THE R1, THE LETTER DT.23.8.0208 PASSED BY THE R1 TO THE R2, WHICH ARE PRODUCED AS ANN-A & B RESPECTIVELY AND ETC.,

IN W.P.No.39190/2010

BETWEEN:

M/S.GARUDADHRI IMPEX PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT NO.22, 7TH MAIN, BETWEEN 8TH AND 9TH CROSS, MALLESHWARAM, BANGALORE. REPRESENTED BY ITS DIRECTOR RAJAKUNNUR.

... PETITIONER

(BY SRI: D.R. RAVISHANKAR, ADVOCATE)

AND:

-: 105 :-

ECOLOGY AND ENVIRONMENT, DEPARTMENT, VIDHANA SOUDHA, BANGALORE.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R3)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE NOTIFICATION AS PER ANENX-G DTD 16.8.2008 BY R1 IN NO. FEE 248 FDP 2006 IS ULTRAVIRES THE PROVISION OF ARTICLE 246, ENTRY 54 OF THE 7TH SCHEDULE, LIST 1, UNION LIST OF CONSTITUTION OF INDIA, THE PROVISIONS OF THE FOREST ACT 1963 AND THE PROVISIONS OF THE FOREST (CONSERVATION) ACT 1980 AND ETC.,

IN W.P.No.9960/2010

BETWEEN:

MR.N.MANZOOR AHMED, S/O.LATE H.N. PEERAN SAB, AGED ABOUT 50 YEARS, RESIDING AT “AHAMED MANZIL”, HOUSE NO.1217/24, BEHIND GOVERNMENT QUARTERS, HOSPET TOWN, BELLARY DISTRICT-583 201.

... PETITIONER

(BY SRI: L.M. CHIDANANDAYYA, ADVOCATE)

-: 106 :-

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4,) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED NOTIFICATION DT.16.8.2008 THE LETTER DT.23.8.2008, WHICH ARE PRODUCED AS ANN-A & B RESPECTIVELY AND ETC.,

IN W.P.No.15431/2010

BETWEEN:

M/S.LAKSHMINARAYANA MINING COMPANY, REGISTERED PARTNERSHIP FIRM,

-: 107 :-

REP. BY ITS PARTNER, SRI. D.N. GOPALAKRISHNA, KARDIKOLLA IRON ORE MINES, N.E.B. RANGE, SIDDAPURA VILLAGE, SANDUR TALUK, BELLARY, HAVING REGISTERED OFFICE AT NO.33, SANNIDHI ROAD, BASAVANAGUDI, BANGALORE.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE FOR SRI. ANIRUDH ANAND, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4,)

*****

-: 108 :-

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DTD. 23.4.2010 VIDE ANNEX-E.

IN W.P.No.15432/2010

BETWEEN:

M/S.KUMARASWAMY MINERAL EXPORTS LTD., REGISTERED PARTNERSHIP FIRM, REPRESENTED BY ITS GENERAL MANAGER, SRI. VIJAY KUMAR, GENERAL MANAGAER, NO.87, S.V.COLONY, NEAR KUMARASWAMY TEMPLE, CLUB ROAD, BELLARY-583 104.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE FOR SRI. ANIRUDH ANAND, ADVOCATE)

AND:

... RESPONDENTS

-: 109 :-

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4,) *****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE BEARING DATED 02.03.2010 VIDE ANNEXURE-E.

IN W.P.No.545/2011

BETWEEN:

M/S. LAKSHMI GAYATHRI IRON & STEELS PVT. LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT 1956, HAVING ITS REGD OFFICE AT NO.247, DWARAKAPURI COLONY, PUNJAGUTTA, HYDERABAD-500 082, A.P. REP. BY ITS AUTHORIZED REPRESENTATIVE, SRI. ANIK KUMAR VIJAY SON OF DINDAYAL VIJAY.

... PETITIONER

(BY SRI: L.M. CHIDANANDAYYA, ADVOCATE)

AND:

-: 110 :-

18TH CROSS, MALLESWARAM BANGALORE-560 003.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE R1 to R4, SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

**** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED NOTIFICATION DT.16.8.2008 PASSED BY THE R1 THE LETTER DT.23.8.2008 PASSED BY THE R1 TO THE R2 WHICH ARE PRODUCED AS ANN-A & B RESPECTIVELY AND ETC.,

IN W.P.No.2776/2011

BETWEEN:

SRI. M. SRINIVASULU, S/O. LATE SRI. M. VENKATASWAMY, AGED ABOUT 58 YEARS, R/O NO.3, WARD NO.18, 15TH CROSS, WOMEN’S’ COLLEGE ROAD, GANDHINAGAR, BELLARY-583 103.

... PETITIONER

-: 111 :-

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4) *****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DATED 16.08.2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27.08.2008 VIDE ANNEXURE F AND THE COMMUNICATION DATED 23.08.2008 ISSUED BY THE 1ST RESPONDENT VIDE ANNEXURE G AND NOTICE DATED 13.12.2010 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE M, AND ALL FURTHER PROCEEDINGS THERETO, IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

-: 112 :-

IN W.P.No.7337/2011,

BETWEEN:

M/S.KALYANI STEELS LTD., HOSPET ROAD, GINIGERA, KOPPAL DISTRICT, REPRESENTED BY ITS MANAGER, SRI. SUNIL KUMAR PAWAR.

... PETITIONER

(BY SRI: K.N. PHANINDRA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL

-: 113 :-

AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4, SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 26.1.2011 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-A & THE NOTICE DATED 27.1.2011 ISSUED BY THE 5TH RESPONDENT VIDE ANNEXURE-B AND ALL FURTHER PROCEEDINGS THERETO AND ETC.,

IN W.P.No.13023/2011

BETWEEN:

SHIVASHANKAR MINERALS LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT 8-2-276, 1ST FLOOR, PAVANI ESTATES, ROAD NO.2, BANJARA HILLS, HYDERABAD-33, HAVING ITS BRANCH OFFICE AT NO.3, LALEHZAR APARTMENTS, 45/1-2, PALACE ROAD, BANGALORE-560 001. REP. BY ITS DIRECTOR, MR. SHIVASHANKAR REDDY.

... PETITIONER

(BY SRI: K. ANANDARAMA, ADVOCATE)

AND:

-: 114 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4, SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 26.3.2011 ISSUED BY THE 5TH RESPONDENT VIDE ANNEXURE-B, AND ALL FURTHER PROCEEDINGS THERETO AND ETC.,

IN W.P.No.15686/2011

BETWEEN:

M/S.RANGINENI STEEL PRIVATE LIMITED, DOOR NO.15, KALPAVRUKSHA RESIDENCY, BESIDE BALA BHARTI SCHOOL, 3RD CROSS,

-: 115 :-

GANDHINAGAR, BELLARY-583 103, REP. BY ITS DIRECTOR, MR. K.YELLAIAH.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE WITH SMT. S.R. ANURADHA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5) *****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE

-: 116 :-

NOTIFICATION DATED 16.8.2008 PUBLISHED IN THE OFFICIAL GAZETTE ON 27.8.2008, ISSUED BY THE 1ST RESPONDENT VIDE ANNEXURE-A, AND THE DEMAND NOTICE DATED 26/31.10.2006 ADDRESSED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT VIDE ANNEXURE-B AND ETC.,

IN W.P.No.15687/2011

BETWEEN:

M/S.PGM FERRO STEELS PVT. LIMITED, BEHIND GOKUL GARDEN, VASAVI CONVENT ROAD, CANTONMENT, BELLARY-583 104 REP. BY: M. BABU RAO DIRECTOR.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE WITH SMT. S.R. ANURADHA, ADVOCATE)

AND:

-: 117 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4, SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DATED 16.8.2008 PUBLISHED IN THE OFFICIAL GAZETTE ON 27.8.2008, ISSUED BY THE 1ST RESPONDENT VIDE ANNEXURE-A, AND THE DEMAND NOTICE DATED 26/31.10.2006 ADDRESSED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT VIDE ANNEXURE-B AND ETC.,

IN W.P.No.15689/2011

BETWEEN:

M/S.BALAJISWAMY PREMIUM STEELS PVT. LIMITED, PLOT NO.16, KIADB MUNDARGI, 2ND PHASE, BANGALORE ROAD, BELLARY-583 101, REP. BY T. SRINIVAS RAO MANAGING DIRECTOR.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCTE WITH SMT. S.R. ANURADHA, ADVOCATE)

AND:

-: 118 :-

ECOLOGY AND ENVIRONMENT, M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE-560 001.

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DTD 16.8.2008 PUBLISHED IN THE OFFICIAL GAZETTE ON 27.8.2008 ISSUED BY THE R1 VIDE ANNEX-A AND THE DEMAND NOTICE DTD 26/31-10.2006 ADDRESSED BY THE R3 TO THE R2 VIDE AENX-B.

IN W.P.No.15691/2011

BETWEEN:

M/S.BELLARY ISPAT PVT. LIMITED, PLOT NO.16, KIADB MUNDARGI,

-: 119 :-

2ND PHASE, BANGALORE ROAD, BELLARY-583 101, REP. BY T.SRINIVAS RAO DIRECTOR.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE, WITH SMT. S.R. ANURADHA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4, SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5) *****

-: 120 :-

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DATED 16.8.2008 PUBLISHED IN THE OFFICIAL GAZETTE ON 27.8.2008, ISSUED BY THE 1ST RESPONDENT VIDE ANNEXURE-A, AND THE DEMAND NOTICE DATED 26/31.10.2006 ADDRESSED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT VIDE ANNEXURE-B AND ETC.,

IN W.P.No.15692/2011

BETWEEN:

M/S.POPURI STEELS LIMITED, PLOT NO.234/247, MINES ROAD, HALKUNDI VILLAGE, BELLARY-583 102, REP. BY ITS GENERAL MANAGER, MR. T. RANGA RAO.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE WITH SMT. S.R. ANURADHA, ADVOCATE)

AND:

-: 121 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI. A.K. VASANTH & SRI. M.K. GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DATED 16.8.2008 PUBLISHED IN THE OFFICIAL GAZETTE ON 27.8.2008, ISSUED BY THE 1ST RESPONDENT VIDE ANNEXURE-A, AND THE DEMAND NOTICE DATED 26/31.10.2006 ADDRESSED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT VIDE ANNEXURE-B.

IN W.P.No.15693/2011

BETWEEN:

M/S.SUPRA STEELS & POWER PRIVATE LIMITED, PLOT NO.7, 4TH CROSS, NANDA SCHOOL ROAD, VIDYANAGAR WEST, BELLARY-583 104, REP. BY K. SATYA PRASAD, MANAGING DIRECTOR.

... PETITIONER

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE WITH SMT. S.R. ANURADHA, ADVOCATE)

-: 122 :-

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4; SRI.A.K.VASANTH & SRI. M.K.GIRISH, ADVOCATE FOR R5)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DATED 16.8.2008 PUBLISHED IN THE OFFICIAL GAZETTE ON 27.8.2008, ISSUED BY THE 1ST RESPONDENT VIDE ANNEXURE-A, AND THE DEMAND NOTICE DATED 26/31.10.2006 ADDRESSED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT VIDE ANNEXURE-B AND ETC.,

-: 123 :-

IN W.P.No.31233/2008

BETWEEN:

M/S. KANHAIYALAL DUDHERIA, A PARTNERSHIP FIRM, REP. BY ITS MANAGING PARTNER, SANJAY BACHHAWAT, AGE 37 YEARS, S/O.NAWARATAN MAL BACHHAWAT, HAVING OFFICE AT: ‘BHANWAR KUNJ’, BEHIND NEW KSRTC BUS STAND, BELLARY ROAD, SANDUR.

... PETITIONER

(BY SRI: L.M. CHIDANANDAYYA, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL

-: 124 :-

AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED NOTIFICATIN DT.16/8/2008 THE LETTER DT: 23/8/2008 AND THE COMMUNICATION DT: 12/9/2008 WHICH ARE PRODUCED AS ANNEXURES A B & C RESPECTIVELY AND ETC.,

IN W.P.No.31182/2008

BETWEEN:

... PETITIONERS

(BY SRI: K.G. RAGHAVAN SENIOR ADVOCATE FOR SRI. M.M. SWAMY, ADVOCATE)

-: 125 :-

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-D AND QUASH THE ORDERS DATED 12/9/2008 AND 22-10-2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE- F & F1 IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

-: 126 :-

IN W.P.No.31184/2008

BETWEEN:

BANASHANKARI IRON ORE MINES, BANASHANKARI 1ST FLOOR, BELLARY RAOD, HOSPET-583 203, BELLARY DISTRICT, REP. BY ITS MANAGING PARTNER, SRI. K. BRAHMANAND, AGED ABOUT 52 YEARS.

... PETITIONER

(BY SRI: K.G. RAGHAVAN, SENIOR ADVOCATE FOR SRI. M.M. SWAMY, ADVOCATE)

AND:

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

-: 127 :-

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-D AND QUASH THE ORDERS DATED 12/9/2008 AND 22-10-2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE- F & F1 IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

IN W.P.No.31185/2008

BETWEEN:

M/S. HIND TRADERS, (MINE OWNERS), NO.140, KALACHALAM COMPOUND, BELLARY-583 101. REP. BY ITS MANAGING PARTNER SRI. PRASHANTH HAVINAHAL, AGED ABOUT 33 YEARS.

... PETITIONER

(BY SRI: K.G. RAGHAVAN, SENIOR ADVOCATE FOR SRI. M.M. SWAMY, ADVOCATE)

AND:

REP. BY ITS PRINCIPAL SECRETARY.

-: 128 :-

... RESPONDENTS

(BY PROF: RAVIVARMA KUMAR, ADVOCATE GENERAL ALONG WITH SRI. A.S. PONNANNA, ADDITIONAL ADVOCATE GENERAL AND Y.H. VIJAY KUMAR, ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R4)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.16/8/2008 ISSUED BY THE 1ST RESPONDENT AND PUBLISHED IN THE GAZETTE ON 27/8/2008 VIDE ANNEXURE-D AND QUASH THE ORDRS DATED 12/9/2008 AND 22-10-2008 ISSUED BY THE 4TH RESPONDENT VIDE ANNEXURE-F & F1 IN SO FAR AS THE PETITIONER IS CONCERNED AND ETC.,

THESE PETITIONS HAVING BEEN RESERVED ON 30/10/2015 AND BEING LISTED FOR PRONOUNCEMENT OF ORDER TODAY, NAGARATHNA J., PRONOUNCED THE FOLLOWING:

-: 129 :-

O R D E R

(1) As common questions of law and facts arise in these writ petitions, they have been heard together and are disposed of by this common order.

(2) BACKGROUND FACTS:

The petitioners in these writ petitions are either lease holders of mines and quarries in forest areas; purchasers of minerals as a forest produce from the lease holders or from the State Government or Corporation, owned or controlled by the State Government; Public Sector Units such as National Mineral Development Corporation (NMDC), State Trading Corporation (STC) or Steel Authority of India Limited (SAIL). Thus, the petitioners could be categorized into two broad categories: the first category is, mining or quarrying lease holders who sell the minerals as forest produce extracted by them from the forest area to various traders or purchasers or make use of them for captive consumption. The second category is, purchasers of minerals as forest produce, either from

-: 130 :-

the State Government or corporation, owned or controlled by the State Government or private mining or quarrying lease holders. These persons do not have any quarrying licenses or leases in their names, but are purchasing the minerals as forest produce for the purpose of trade either for export, inter state trade or domestic market. It is the purchasers of the minerals as a forest produce who have to pay the Forest Development Tax (‘FDT’ for the sake of brevity) along with the sales tax or value added tax, at the time of purchase on the sale consideration to their vendors. The vendors may be either the State Government or a corporation, owned or controlled by the State or a body notified by the State Government. Thus, in short both purchasers as well as the sellers of minerals as a forest produce have filed these writ petitions. The lease holders may be either individual person i.e. sole proprietorship concerns, companies, partnership firms or other associations of persons. Similarly, the purchasers of minerals as a forest produce could be individuals,

-: 131 :-

companies, partnership concerns or such other juristic entities.

Public Sector units such as NMDC, STC, SAIL have also preferred their writ petitions. NMDC is a lessee in the State of Karnataka involved in mining vast extent of land including forest land and also involved in selling the extracted ore. STC inter alia, purchases minerals as forest produce for further trading and even for export purposes. SAIL purchases the minerals from State Government undertaking or even from private entities to be utilized in steel industry and thus for captive consumption.

(3) We have perused the pleadings and annexures in the writ petitions and statement of objections filed on behalf of the State and other respondents.

(4) BIRD’S EYE VIEW OF THE CONTROVERSY:

(a) In these writ petitions, petitioners have assailed Gazette Notification bearing No.248/FD 2006 dated 16/08/2008 issued by the State Government under

-: 132 :-

Section 98-A of the Karnataka Forest Act, 1963 (hereinafter referred to as ‘the Act’ for the sake of brevity).

(b) The centre of controversy in these writ petitions is as to whether the State Government can levy FDT on minerals, which is defined as a forest produce under Section 2(7) (b) (vi) of the Act, when such forest produce is disposed of by the State Government or by a Corporation, owned or controlled by or a body notified by the State Government by sale or otherwise, at the rate of 8% (since enhanced to 12%) on the amount of consideration paid at the time of sale or when it is otherwise disposed of.

(c) The main contention of the petitioners is that the impugned Notification dated 16/08/2008 issued under Section 98-A of the Act, is contrary to the provisions of the said Act.

-: 133 :-

(d) The other reason as to why imposition of FDT under Section 98-A of the Act has been assailed by the petitioners is on the legal competence of the State Legislature in incorporating Section 98-A and 98-B under Chapter XI-A of the Act, having regard to the provisions of the Constitution and the entries in the three Lists of Seventh Schedule of the Constitution. In that regard, the question is, as to whether, the State Government has the competence to levy FDT, in view of the declaration made under Section 2 of the Mines and Minerals (Development and Regulation) Act, 1957 (“MMDR Act” for the sake of brevity). In view of the said declaration, all aspects concerning regulation of mines and development of minerals to the extent provided under MMDR Act is now under the control of the Union Government, is the contention of the petitioners.

(e) Another question which arises in these cases is, as to whether, the State could levy and collect FDT in the case of export of forest produce or in inter-state sales,

-: 134 :-

having regard to the restriction imposed in Article 286 of the Constitution of India.

(f) Next, having regard to the 42nd amendment made to the Constitution and the subject “forests” being transferred from Entry 19 of List II (State List) of Seventh Schedule of the Constitution to Entry 17A of List III (Concurrent List) of the said Schedule and on the enforcement of Forest (Conservation) Act, 1980 (hereinafter, referred to as ‘F.C. Act’, for the sake of convenience) and the provisions made under the Environment (Protection Act), 1986 (hereinafter, referred to as ‘E.P. Act’, for the sake of brevity), whether the State Legislature has been denuded of its right to continue to levy FDT under Section 98-A of the Act.

(g) An incidental question is, as to whether, by inter-departmental communication, the State could enhance the levy of FDT from the statutory provision of 8% to 12% on the sale consideration and also the manner in which the sale consideration is to be reckoned - whether

-: 135 :-

on the basis of the actual invoice or on the basis of the price fixed by the State owned Corporation.

(h) In sum and substance, petitioners have contended that levy of FDT is contrary to Article 265 of the Constitution, apart from other provisions of the Constitution and have sought refund of the tax paid by them with interest. In this regard, demand notices issued by the respondents have been assailed.

(5) LEGAL FRAMEWORK: Having given the bird’s eye view of the controversy, it is necessary to delineate on the legal frame work and the relevant provisions under consideration in these matters.

(a) Karnataka Forest Act, 1963: The relevant provisions of the Karnataka Forest Act, 1963 are as under:

The object of the Act is to consolidate and to amend the law relating to the forest and forest produce in the

-: 136 :-

State of Karnataka. The Act extends to the whole of State of Karnataka. The Act received assent of the President on 28/01/1964 and it was published in the Karnataka Gazette on 27/02/1964. Section 2 defines ‘Forest produce’ as under:

(7) “Forest produce” includes.-

(a) the following whether found in or brought from a forest or not, that is to say.-

timber, charcoal, caoutchouc, catechu, sandal wood, lootikai (Capparis Mooni), wood oil, sandalwood oil, resin, rubber latex, [x x x x x] natural varnish, bark, lac, mahua or ippe (Bassia latifolia) flowers and seeds, seed of Prosopis juliflora, kuth, and temburni or tupra (Diospyros Melanoxylon) leaves, rosha (Cymbopogon Martini) grass and oil and myrabolams (Terminalia Chebula,

-: 137 :-

Terminalia Belerica and (Phyllanthus Emblica, Ramapatre and Shigakai); and

(b) the following when found in, or brought from, a forest, that is to say.-

(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees;

(ii) being plants no trees, (including grass, creepers, reeds and moss), and all parts or produce of such plants;

(iii) wild animals and pea fowls and skins, tusks, horns, bones, silk cocoons, honey, and wax and all other parts or produce of wild animals, pea fowls and insects; and

(iv) peat, surface soil, rock, and minerals (including limestone), laterite, mineral oils, and all products of mines or quarries; and

-: 138 :-

(iv-a) cocoa beans or pods, garcinia fruits, thornless bamboss, Halmaddi, Raldhupa and Kaidhupa;

(v) such other products of forests as the State Government may, by notification, declare to be forest produce;”

Section 98-A and 98-B which are in Chapter XI-A of the Act, dealing with FDT read as under:

“98-A. Levy of Forest Development Tax.- (1) Notwithstanding anything contained in this Act, in respect of forest produce disposed of by the State Government or by a corporation, owned or controlled by or a body notified by the State Government by sale or otherwise, there shall be levied and paid to the State Government a tax at the rate of eight per cent on the amount of consideration paid therefor.

Provided that the tax levied and paid under this sub-section on the disposal of forest produce specified in column (2) of the Table below to the categories of persons or industries

-: 139 :-

specified in column (3) thereof shall be twelve per cent on the amount of consideration.

TABLE Sl. No Forest produce When disposed of to (1) (2) (3) 1 Timber,Firewood, Grass,Charcoal and Eucalyptus Industries 2 Bamboo,reeds and canes Pulp and Paper Industries except Cottage Industries; 3 Sandalwood (a) Sandalwood Oil Factories; and (b) Others, except; i) Artisans ii)Religious Institution; and iii)Cottage industries 4 Minor Forest produce as defined in the rule but not falling under Serial numbers 1 and 2 Industries except Large scale Multi- purposeCo- operative Societies (LAMPS)]”.

Provided further that the tax under the above proviso in respect of Eucalyptus and

-: 140 :-

Bamboos supplied as raw material for manufacture of news print shall be fifty per cent of the rates specified therein or a period of five years.

(1-A) Notwithstanding anything contained in sub-section (1), no tax shall be payable to the State Government by a corporation, owned or controlled by the State Government to the extent of tax not levied and collected by it during the period from fourteenth day of February, 1978, till the commencement of the Karnataka Forest (Amendment) Act, 1988.

(2) The said tax shall be collected along with such consideration.

(3) It is hereby declared that the said tax shall be in addition to and not in lieu of any tax payable in respect of such produce under any other law in force.

(4) There shall be levied and collected interest at the rate of eighteen per cent per annum till the date of payment or recovery of all tax dues.

-: 141 :-

98-B. Forest Development Fund.- (1) There shall be constituted for the State of Karnataka a Fund called the Karnataka Forest Development Fund.

(2) The following shall form part of Karnataka Forest Development Fund, namely:-

(a) The tax and interest levied and collected under Section 98-A;

(b) The money recovered for raising compensatory plantation in lieu of the forest area made over for non-forestry purposes;

(c) sandal surcharges collected for the development of sandalwood resources;

(2-A) The amounts referred to in sub- section (2) shall first be credited to the Consolidated Fund of the State and under appropriation duly made by law in this behalf, be entered in and transferred

-: 142 :-

to the Karnataka Forest Development Fund.

(3) Any amount transferred to the said fund under sub-section (2), shall be charged upon the Consolidated Fund of the State.

(4) The amount at the credit of the said fund shall not be expended except for the raising of forest plantation and for such other purpose as are ancillary thereto.”

Minor forest produce is defined in Rule 2(6) of the Karnataka Forest Rules, 1969 (hereinafter refer to as ‘Rules’ for the sake of convenience) and it reads under:

“2(6) – “Minor forest produce” means forest produce other than timber, sandalwood, firewood, charcoal, bamboos and minerals and includes forest produce such as myrobalams, barks, fibres, flosses, gums, resins, dyes, grass, leaves, roots, fruits, seeds, creepers, reeds, moss, lichens, wood-oil, honey, wax,

-: 143 :-

lac, wild animals, wild birds, Government tropy, horns, hides, bones, tusks etc.”

Sale of forest produce is dealt with in Chapter – XII of the Rules. The methods of selling forest produce are given in Rule 85 and related provisions which read as under:- “85. Methods of selling forest produce.- (1) No forest produce shall be sold by any method other than the following.-

(i) Sale by auction or tender or tender-cum-auction; (ii) Sale at the sanctioned schedule of rates in depots; (iii) Sale by issue of licenses at the sanctioned seigniorage rates:

Provided that any other method may be resorted to with the previous sanction of Government whenever the Chief Conservator of Forests considers it desirable to do so in the interest of the Department.

(2) The rates referred to in clause (ii) of sub-rule (1) shall be the schedule of rates

-: 144 :-

sanctioned by the Chief Conservator of Forests from time to time.

(3) The rates referred to in clause (iii) of sub-rule (1) shall be those specified in Rule 83.

(4) All important sales of timber and other forest produce shall generally be held by open public auction, tender or tender-cum- auction:

Provided that the Chief Conservator of Forests may accept individual offers at his discretion in the interest of the Department.

(1) A Notification of sale shall be published in official Gazette along with conditions of sale for all sales of timber or any other forest produce either by auction or tender or tender- cum-auction, provided that in cases where estimated value is less than rupees five hundred, it would be sufficient if a local notification is issued and wide publicity is given locally.

-: 145 :-

(2) The date or dates of sales of timber in major depots and other important sales of forest produce shall be fixed by the Conservator of Forests, in consultation with the other Conservators of Forests, well in advance.”

The manner in which the forest produce has to be sold are in the succeeding Rules and Rule 102, defines the powers of the Forest Officers in respect of the sale of forest produce. Chapter XVI deals with transit of forest produce and control of private saw pits and saw mills etc.

Section 116 of the Act states that the provisions of the Act are in addition to and not in derogation of the provisions of the MMDR Act and it reads as under:

“116. Central Act No.67 of 1957 to prevail.- Nothing in this Act shall be deemed to affect the operation of the Minerals (Regulation and Development) Act, 1957 (Central Act 67 of 1957) and the rules, made thereunder, and the provisions of this Act shall be in addition to and not in derogation of the provisions of the said

-: 146 :-

Mines and Minerals (Regulations and Development) Act, 1957.”

(b) Mines and Minerals (Development and Regulation) Act, 1957

Section 2 of the MMDR Act reads as under: -

“2. Declaration as to the expediency of Union control.- It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided.

The object of MMDR Act is to provide for the development and regulation of mines and minerals under the control of the Union. Section 13 empowers the Central Government to make rules for regulating the grant of various types of reconnaissance permits, prospecting licences and mining leases in respect of minerals and purposes connected therewith. Section 18 states that it is the duty of the Central Government to take steps for conservation and systematic development of minerals and

-: 147 :-

protection of environment by preventing or controlling any pollution which may be caused by prospecting or mining operations and for the said purpose necessary rules Mineral Conservation and Development Rules, 1988 have been made in exercise of powers under Section 18 of the MMDR Act.

(c) Forest (Conservation) Act, 1980:

The object of the said Act is to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto.

Section 2 of the F.C. Act reads as under:

“2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose.-Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make except with the prior approval of the Central Government, any order directing,-

(i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in

-: 148 :-

force in that State) or any portion thereof, shall cease to be reserved;

(ii) that any forest land or any portion thereof may be used for any non- forest purpose;

(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government;

(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for re-afforestation.

Explanation.- For the purpose of this section ‘non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for.-

(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing

-: 149 :-

plants, horticultural crops or medicinal plants;

(b) any purpose other than re- afforestation,

but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, water holes, trench marks, boundary marks, pipelines or other like purposes.”

(d) Environment (Protection) Act, 1986:

Sub-section (3) of Section 3 of the Environment (Protection) Act, 1986 reads as under:-

“3. Power of Central Government to take measures to protect and improve environment:

(1) X X X

(2) X X X

(3) The Central Government may, if it considers it necessary or expedient so to do for the purposes of this Act, by order, published in

-: 150 :-

the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise the powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures.”

(e) Constitution of India: Article 246 of the Constitution deals with subject matter of laws made by Parliament and Legislatures of all States. It refers to the matters enumerated in List I which is called ‘Union List’; List II called as ‘State List’ and List III

-: 151 :-

referred to as ‘Concurrent List’ of Seventh Schedule of the Constitution.

Any reference to the Lists in the course of this order would be with reference to Seventh Schedule of the Constitution.

Article 248 speaks of residuary powers of legislation vested with Parliament, which reads as under:

“248. Residuary powers of legislation.-

(1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. (2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.”

Parliament has the power of legislate with respect to a matter in the State List in national interest by invoking Article 249 of the Constitution. If there is inconsistency

-: 152 :-

between the laws made by Parliament and the laws made by the Legislature of a State with regard to any subject enumerated in Concurrent List, the same is resolved under Article 254 of the Constitution which reads as under:

“254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains

-: 153 :-

any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”

Article 265 of the Constitution refers to imposition of taxes on law and it reads as under:

“265. Taxes not to be imposed save by authority of law.- No tax shall be levied or collected except by authority of law.”

Article 286 refers to certain restrictions on imposition of tax on the sale or purchase of goods outside the State or in the course of import of the goods into, or export of

-: 154 :-

the goods outside India, impositions, restrictions on the State Government. It reads as under:

“286. Restrictions as to imposition of tax on the sale or purchase of goods.- (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place- (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India.

(2) Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1).

(3) Any law of a State shall, in so far as it imposes, or authorises the imposition of,-

(a) a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce; or

-: 155 :-

(c) a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause (b), sub- clause (c) or sub-clause (d) of clause (29-A) of Article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify.”

The expression “goods” is defined in Article 366 (12) to include all materials, commodities and articles. Article 366(29-A) defines tax on the sale or purchase of goods. It is an inclusive definition and therefore not exhaustive.

The relevant entries of the Union, State and Concurrent Lists of Seventh Schedule for the purpose of these cases are extracted as under:

“List I – Union List - Entry 54, 92-A, 97

-: 156 :-

of Union is declared by Parliament by law to be expedient in the public interest.

92-A. Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter- State trade or commerce.

List II – State List - Entry 23, 50, 54

-: 157 :-

(List III – Concurrent List- 17-A, Entry – 47) 17-A. Forests 47. Fees in respect of any of the matters in this List, but not including fees taken in any Court.

(6) HISTORICAL PERSPECTIVE :

(a) At this stage, it may be noted that Entry 17A List III dealing with subject, "Forest" was inserted in the Concurrent List by virtue of the 42nd amendment made to the Constitution w.e.f. 03/01/1977. Earlier, the subject, "Forest" was in Entry 19 of List II i.e., the State List. The Indian Forest Act, 1927 (Central Act), which is a Pre- Constitution statute was in force in British India. It replaced the Indian Forest Act, 1878. After the reorganization of the State of Karnataka, the Karnataka Forest Act, 1963 (State Act) was enacted. As per Section 117 of the said Act, various enactments including Indian Forest Act, 1927 applicable to different parts of the State were repealed. Therefore, Presidential assent of the State

-: 158 :-

Act was obtained by the State Legislature. The State Act thus prevails over the State Act in the entire State of Karnataka.

When the subject, “forests” was in the State List by Act 15 of 1976, Chapter XI-A was inserted into the Act comprising of Section 98-A and 98-B of the Act. The said sections come into force w.e.f. 24/12/1975 i.e. with retrospective effect.

The Section underwent an amendment by Act No.10 of 1989 w.e.f. 14/02/1978. By that amendment the expression “or by a Corporation, owned or controlled by a body notified by the State Government” was inserted by Act No.10 of 1989 w.e.f 14/ 02/1978. The expression eight percent substituted five percent in sub-section (1) of 98-A of the Act. The first proviso to the said sub section was inserted by Act No.7 of 1983 w.e.f. 01/04/1983. The second proviso to the said sub-section was inserted by Act No.10 of 1989 and was deemed to have been inserted w.e.f. 01/10/1983. Sub- section (1-A) was inserted by Act No.10 of 1989 w.e.f.

-: 159 :-

16/03/1989. Sub-section (4) was inserted by Act No.24 of 2009 w.e.f. 17/09/2009. Sub-sections (2) and (2-A) of Section 98-B were substituted by sub- section(2) of Act No.10/1989 w.e.f 16/03/1989. The expression “Entries” in section 98-B was inserted by Act 24 of 2009 w.e.f 17/09/2009.

(b) Section 98-A of the Act has been a subject matter of judicial scrutiny by this Court as well as by the Hon’ble Supreme Court. However, the reason for reconsideration of the matter has been in light of the amendment made to Section 98-A by Act No.10 of 1989 w.e.f. 14/12/1978 and the issuance of the Notification by the State Government on 16/08/2008 which has led to a fresh challenge in these matters. Therefore, before noting the submissions of the learned counsel in the matter, it is necessary to consider the previous judicial pronouncements on Sections 98-A and 98-B of the Act.

(i) In Gurusiddappa Nurandappa Uppin and etc., vs. State of Karnataka and another reported in

-: 160 :-

AIR 1981 KAR -216 (Gurusiddappa), a Division Bench of this Court had occasion to consider the validity of Section 98-A of the Act. The question raised in that case was, whether the State Government could impose FDT on the consideration paid for the forest produce disposed of by the State Government. In other words, the constitutional validity of the said imposition was considered. That decision was rendered in the context of disposal of timber as a forest produce by the State Government. The Division Bench of this Court noted that petitioners therein, had paid sales tax on the entire consideration amount and the levy of FDT under Section 98 A of the Act was sought to be recovered from the petitioners on the purchase amount paid by the petitioners to the Government, the taxing event being the sale of forest produce. This Court held that levy was covered under Entry 54 of List II. In that case, the petitioners had entered into contracts for the disposal of the forest produce and the question was, whether the imposition of FDT was only on sale of forest produce or otherwise. This Court held that the levy of FDT

-: 161 :-

on the purchase price of forest produce when disposed of by sale by the State Government, whatever may be the method of sale, was within the legislative competence of the State under Entry 54 of List II and was constitutionally valid. Therefore, even if the transaction was not a direct sale, but by other methods, such as auction or tender cum auction, sale at depots, sale by issuance of licence at the sanctioned seigniorage rates, were all within the scope of Entry 54 of List II. No opinion was expressed on the question of validity of the Section 98-A as to whether the levy could be imposed on a transaction other than sale. The contention regarding double taxation was repelled by holding that there is no provision in the Constitution, which restraints the Legislature from levying tax on sale on the same person, more than once. Thus, it was held that the tax imposed under Section 98-A of the Act was neither compensatory nor regulatory in nature. It was a compulsory exaction for public purpose and therefore was a tax. At Para - 22 of the judgment, it was observed as under:

-: 162 :-

“22. Sub-section (1) of Section 98-A itself not only imposes a tax, but also quantifies the tax at 8 per cent on the amount of consideration paid for forest produce and, therefore, it covers the two essential aspects, namely the levy and the assessment. Sub- section (2) of Section 98-A provides that the said tax shall be collected along with such consideration which means the authority competent to collect the consideration for the sale of forest produce is also the authority empowered to collect the forest development tax at the rate prescribed under sub-section (1) of Section 98-A, Rule 102 framed under the Act prescribes the category of officers who could exercise power regarding the sale of forest produce by specifying the officers by designation and also the extent of their powers to effect sales by specifying the maximum amount of consideration up to which each category of officer has the power to effect sale of forest produce. The fifth contention, therefore, fails and the same is rejected.”

Another contention raised on behalf of the petitioner therein was that Section 98-A of the Act infringed Article

-: 163 :-

14 of the Constitution. It was contended that the levy of tax was only on the sale of forest produce by the State Government and that no such levy was imposed on the sale of forest produce effected by private individuals owning forest. In answer to that, it was held that under Section 98-A of the Act, the tax was imposed on the sale of forest produce by the State Government which owns most of the forests in the State and that the State could not be compared to private individuals. Further, the object of the tax as was discernible from Section 98-B of the Act was to collect resources for raising forest plantations, which could obviously be raised only on the cultivating land. Levy had a nexus to the object sought to be achieved. Also, the right to equality guaranteed under Article 14 did not compel the State to impose tax on all persons.

It was also held that Section 98-A which came into force on 24/12/1975 had no retrospective effect. Levy of tax under the section was on the purchaser and the tax

-: 164 :-

had to be computed on the consideration paid. Therefore levy was inapplicable to sales of forest produce, prior to 24/12/1975. A direction was issued to refund tax collected in respect of the sales under contracts made prior to 24/12/1975. This judgment has attained finality as no challenge was made to the same before the Hon’ble Supreme Court.

(ii) Subsequently, on 1.4.1992, the State Government issued notices to certain persons who had obtained mining leases from the State Government with regard to iron ore/ manganese ore in the lands leased to them situated in forest areas by invoking section 98-A of the Act, demanding from them FDT from 01/04/1992 at the rate of eight percent on the royalty amount paid by the lessees/the petitioners therein, to the Department of Mines and Geology. The said demand was challenged in a batch of writ petitions, (W.P. No.35525/1993 and connected writ petitions) which were disposed of by a Hon’ble Single Judge of this Court on 02/07/1996 (R. Pampapathi &

-: 165 :-

Others vs. State of Karnataka & Others) (Pampapathi). The petitioners therein contended that such tax was not payable by them in regard to the royalty paid on the mineral removed from them from the leased area. It was contended that payment of royalty was not a consideration for disposal by sale or otherwise of minerals as a forest produce under Section 98-A of the Act, but it was a tax paid on the mineral leased from the land and therefore Section 98-A of the Act was not attracted. It was also contended that the State Legislature had no legislative competence to levy any FDT on royalty payable in respect of the mining lease granted under the MMDR Act, as the entire field relating to grant of mining leases and levy and collection of royalty was covered under the MMDR Act and levy of any tax on royalty which would also result in increasing of royalty payable under the Act was violative Section 9(2) of MMDR Act. Therefore, the petitioners therein, who were the lessees sought a declaration that FDT was not leviable on the royalty paid with regard to mining leases granted by the State Government under the

-: 166 :-

provisions of the MMDR Act and thereby they sought quashing of the notices issued by the Senior Geologists demanding payment of FDT and they also sought a direction to the respondents therein to refund the tax collected from them. In substance, it was contended that levy of FDT on royalty payable on minerals was unconstitutional.

It was contended on behalf of the State therein, that the grant of mining lease by the State Government to the lessees amounted to disposal by sale or otherwise of the iron/manganese ore belonging to the State Government and royalty paid by the lessees to the State Government was nothing but consideration for the mineral that was recovered and removed from the mines by lessees. Even if royalty is a tax, it did not cease to be consideration. Therefore, when the mining lease was in a forest area, the sale of minerals was as a forest produce under Rule 85 of the Rules. Even if it was not a sale, it was a disposal. That the levy of the tax was within the legislative

-: 167 :-

competence having regard to the Entries 23, 49, 54 of List II; that even if the levy was not traceable to Entry 54 of List II, it could be traceable to entries 23 and 49 of List II and also Entry 50 of List II and levy of FDT did not entrench upon any occupied field. Reliance was also placed on Gurusiddappa.

On the above contentions, this Court raised the following points for its consideration;

“5. On these contentions, the following points arise for consideration:-

(i) Whether the grant of mining leases in the lands belonging to Government under the M.M.R.D. Act would amount to disposal by sale or otherwise of minerals, by the State Government and whether the amount paid as royalty is ‘consideration’ paid for such disposal by sale or otherwise?

(ii) Whether the State has legislative competence to levy, forest development tax on the royalty

-: 168 :-

amount paid by the Lessees to the State Government in regard to the mining leases granted under the M.M.R.D. Act?

(iii) If the levy is invalid, whether such declaration should be given effect only prospectively?”

This Court considered the statutory and contractual provisions relating to a mining lease to ascertain as to whether the transactions under which the State Government disposes by sale or otherwise for consideration minerals which are forest produce and held, in the grant of a mining lease there is neither sale or disposal of forest produce or transfer of minerals in law, enabling the transferee to enjoy the benefit in a manner specified by extracting and removing minerals nor royalty can be treated as consideration for disposal of minerals by “sale or otherwise “. After referring to certain Apex Court decisions, it was held that grant of mining lease does not involve sale of the mineral by the State to the lessee.

-: 169 :-

On Point No.1, it was held as under:- “16. It is thus evident that the essential condition necessary for levying forest development tax under Section 98-A of the Forest Act, viz., disposal by State of forest produce, by way of sale or otherwise for consideration, is absent in regard to extraction and removal of minerals by a lessee under a mining lease granted to him, by the State, and payment of royalty by the lessee in regard to such minerals. Therefore, forest development tax cannot be levied or collected under Section 98-A of the Forest Act in regard to the ore/mineral that is extracted by the petitioners from the leased lands under mining leases granted by the State Government.”

From the above, it is clear that FDT cannot be levied or collected under Section 98-A of the Act on the royalty paid on ore or minerals extracted from the leased mining leases granted by the State Government to the lessees in forests. On the question as to whether the State had legislative power to impose tax on Royalty payable to the State Government in regard to mining leases granted

-: 170 :-

under the MMDR Act, after referring to the judgments of the Hon’ble Supreme Court, it was held that the State Government did not have the competence to levy FDT on royalty payable under the MMDR Act and to that extent Section 98-A was ultra vires power of the State Legislature. On the question of refund of FDT already paid and whether the decision has only prospective operation, it was held that when Section 98-A was held to be inapplicable with regard to payment of royalty on mining leases, the question of restricting the operation of the judgment prospectively or refusing to direct refund, did not arise. Writ Petitions were allowed in the following terms: “21. In view of the above, the petitions are allowed as follows:-

a) It is declared that the Forest Development Tax under Sec 98-A of Karnataka is not leviable on royalty Forest Act, 1963 payable to the State Government in regard to mining leases under the provisions of the

-: 171 :-

Mines and Minerals (Regulation & Development) Act (Act 67 of 1957).

b) The respondents are restrained from demanding or collecting Forest Development Tax under Sec 98-A of the Karnataka Forest Act, 1963, from petitioners, on royalty paid by them in regard to mining leases.

c) The Notices issued by the respective senior Geologists to the petitioners demanding payment of forest development tax, are quashed; and

d) Wherever the respondents have collected any amount as Forest Development Tax from the petitioners, the same shall be refunded to them.”

The order of the Hon’ble Single Judge was upheld by a Division Bench of this Court in W.A. No.3166-3214/1997 and connected matter by judgment dated 17/11/1998 and the Special Leave Petitions preferred by the State Government were also dismissed.

-: 172 :-

(iii) While the aforesaid decisions are on Section 98-A of the Act, it would also be relevant to note other judgments of this Court (having a bearing on these matters). In M/s.Lakshminarayana Mining Co vs. Taluk Development Board (AIR 1972 Mysore 299) (M/s. Lakshminarayana Mining Co), the holders of mining concession granted by the State Government authorizing them to conduct mining operation within Sandur Taluk, Bellary District, questioned the Notification issued under Sections 143 and 144 of the Mysore Village Panchayath and Local Boards Act, 1959, demanding licence fee on mining of manganese/iron ore. It was held that in exercise of powers conferred by Section 13 of the MMDR Act, the Central Government had framed rules known as the Mineral Concession Rules, 1969, which deals with the procedure for grant of prospecting licence or mining lease and conditions subject to which it could be granted. The Parliament had made necessary declaration under Section 2 of the MMDR Act as provided in Entry 54 of List I and has assumed legislative control over matters dealing with the

-: 173 :-

MMDR Act, which is a Central Act. Therefore to the extent, the MMDR Act makes provision regarding regulation and development of minerals, the power of the State Legislature under Entry 23 of List II stood curtailed. It was held that the State Government could not levy taxes on mining activities carried on by persons holding mineral concessions and thus the impugned notification was unauthorized and it was quashed.

At paragraph-15 of the judgment, it was held as under: “15. Entry 50 in List II which authorises the levy of tax on mineral rights is subject to limitations imposed by Parliament by law relating to mineral development made in exercise of its power under Entry 54 of List I. It was contended on behalf of the respondents that in the instant case the tax was not on mineral rights, but on the activity of mining carried on in certain areas. We find it difficult to accept the said contention. As observed by the Supreme Court in State of Orissa v.

-: 174 :-

M.A.Tulloch, AIR 1964 SC 1284 by making a declaration under Section 2 and enacting Section 18 of the Central Act, the intention of the Parliament to cover the entire field of mineral development including tax on mineral rights is made clear. The levy of royalty under Section 9 of the Central Act and the provision for making rules with regard to the fixation and collection of dead rent, fines and fees or other charges and the collection of royalties on prospecting licence and mining lease and the provisions of Section 25 of the Central Act authorising the recovery of any tax payable under the Central Act as arrear of land revenue, clearly shows that the Parliament intended that the power to legislate with regard to taxation on mineral rights also should be assumed by it to the exclusion of the State Legislatures. The expression 'royalty' is used differently in different contexts. Sometimes it is used as equivalent to a tax also and in some other cases it is used as representing the amount payable by a lessee in respect of minerals removed by the lessee even though the lessor is not the

-: 175 :-

sovereign Government. We are of the opinion that the expression 'royalty' in Section 9 which requires payment of royalty to the State Government as prescribed in the II Schedule connotes the levy of a tax. Vide Laddu Mal v. The State of Bihar, AIR 1965 Pat 491. It is a levy falling outside the scope of Entry 84 in List I which provides for levy of excise duty by Parliament, but within the scope of the expression 'tax on mineral rights' within the meaning of that expression in Entry, 50 of List II. To us it appears the expression 'tax on mineral rights' includes within its scope the royalty payable on minerals extracted. Mineral rights and mining activity carried on in exercise of those mineral rights appear to us to be indistinguishable in the above context. That appears to be the true intendment of the declaration contained in Section 2 of the Central Act and that it is so enacted in order to see that throughout the Indian Union, the rents, royalties and other taxes payable in respect of mining and minerals are uniform. It may be recalled here that in Hingir Rampur Coal Company's

-: 176 :-

case, AIR 1961 SC 459, the Supreme Court has stated that the scope of the Central Act is wider than the scope of the Central Act LIII of 1948 which by Section 6 (2) provided for making rules regarding levy and collection of royalties, fees or taxes on minerals mined, quarried or excavated (vide paragraph 24 of the judgment).

We are, therefore, of the-opinion that by the enactment of the Central Act, the State Legislature lost its legislative power under Entries 23 and 50 of List II to the extent indicated in the Central Act. Hence, we cannot accept the contentions of the respondents that even after the passing of the Central Act, the State Legislature by enacting Section 143 of the State Act intended to confer power on the respondents to levy tax on the mining activities carried on by persons holding mineral concessions. It follows that levy of tax on mining by respondents as per the impugned notification is unauthorised and is liable to be set aside. It was however argued that such a declaration cannot be

-: 177 :-

made without pronouncing upon the validity of Section 143 of the State Act. We do not agree. Section 143 of the State Act is not inconsistent with the Central Act. It does not in express terms authorise a levy of fee or tax on mining of manganese or iron ore. It cannot also be construed as conferring such a power on the respondents to levy a tax or fee on mining, in view of the well settled rule of statutory construction that a court construing a provision of law must presume that the intention of the authority in making it was not to exceed its power but to enact it validly. Where therefore two constructions are possible, the one which sustains the constitutional validity must be preferred. Section 143 so construed cannot be held to be unconstitutional. What is however liable to be set aside is the notification issued by respondent 1 in exercise of its power under Section 143 of the State Act to the extent it levies a tax on mining of manganese or iron ore.”

(iv) The said decision was approved by a Seven Judge Constitution Bench of the Hon’ble Supreme Court

-: 178 :-

in India Cements Limited v. State of Tamilnadu in AIR 1990 SC 85 (India Cements Ltd.). In that case, the imposition of cess on royalty at the rate of 45 paisa per rupee under Section 115 of the Madras Village Panchayat Act, 1958 as amended in 1964, on royalty paid, was questioned. The contention of the appellant therein was that cess on royalty could be levied. After referring to various judgments and particularly, the judgment of Division Bench of this Court in M/s.Lakshminarayan Mining Co., it was held that royalty is levied under Section 9 of the MMDR Act.

It was declared that levy of cess under Section 115 of the aforesaid Act by the State of Tamil Nadu was not authorized by law, as it was ultra vires, competence of the Tamil Nadu State Legislature, but no direction for refund of cess already paid or collected was issued.

(v) Next, the Karnataka State Government had enacted the Karnataka (Mineral Rights) Tax Act, 1984. The validity of that Act was questioned before a Division

-: 179 :-

Bench of this Court in Evershine Monuments vs. State of Karnataka and others (W.P.No.14360/1984). The Division Bench of this Court by placing reliance on India Cement Limited, held that the State Government was denuded of its legislative power under Entry 23 of List II, to the extent the matter was covered under the MMDR Act and therefore the provisions of the Act impugned were beyond the competence of the State Legislature. While allowing the writ petitions, it was declared that the Karnataka (Mining Rights) Tax Act, 1984 was unconstitutional and void and a direction was issued against the State Government not to enforce the provisions of the said Act. (vi) When the matter stood thus, in National Mineral Development Corporation Limited and Others vs. State of Karnataka and Others [ILR 2004 KAR 3519] (NMDC), appellants therein had sought a declaration that the provisions of the Act and rules framed thereunder were inapplicable in the matter of

-: 180 :-

procurement and transportation of iron ore by them i.e., lessees in respect of the mining activities carried on by them on the land leased to them. They sought a declaration that the State and its authorities could not insist upon them to obtain transport permits or passes for transportation of minerals from the mining leases covered under the lease obtained by them. They also sought quashing of the notices issued by them by the Forest authorities directing them to seek transport permits or passes issued by the competent forest officer before transporting the minerals from the forest area and also striking down 2(7)(b) (iv) of the Act as it was inconsistent with the provisions of the MMDR Act. The Hon’ble Single Judge of this Court had negatived the contentions of the petitioners and the matter was taken up in appeals.

A Division Bench of this Court, after considering the provisions of the Act and the Rules made thereunder in juxtaposition with the MMDR Rules, held that the provisions of the aforesaid two Acts and Rules have to be

-: 181 :-

harmoniously read. It concluded that there was nothing wrong or unreasonable on the part of the State Government, which had granted a lease to a person, who exploited minerals in forest area by virtue of the lease, to obtain from Government transport permits and passes from the Government for the purpose of transporting minerals exploited by such a person. That Rules 144 to 148 of the Rules were regulatory in nature and were not inconsistent with the MMDR Act. Reliance was placed on State of Tripura and others vs. Sudhir Ranjan Nath [AIR 1997 SC 1168] to hold that the object of the Karnataka Forest Act, 1963 was to preserve and protect forest wealth and to regulate the cutting, removal, transportation and possession of forest produce in the interest of the State and its people. Referring to Section 116 of the Act, it was held that the Act is in addition to MMDR Act and Rules framed thereunder and not in derogation of the provisions of the MMDR Act. Therefore, the inclusion of “minerals” under Section 2(7)(b)(iv) of the Act as forest produce is only for the purpose of the

-: 182 :-

provisions of the Act and there was no intention on the part of the State legislature to make a legislation in respect of the field occupied by the MMDR Act. That on a closer examination of the Act in question, it became clear that the State had not reserved any right under the Forest Act for the disposal or exploitation of the minerals as made under the provisions of the MMDR Act. The Rules are only regulatory in nature which provided for obtaining a pass on payment of a nominal fee for issuance of pass, while transporting forest produce from the forest area. According to the Division Bench, when exploitation of minerals, which is governed by the Central Act i.e., MMDR Act, are located in forest area where State’s forest wealth is located, the State Legislature, which is conferred with the power to legislate on subject “forest” under Entry No.17A of List III, while defining or setting out what are the forest produce for the purpose of the Act, in the absence of any provision made in the Act, which in any manner runs counter to the provisions made under the MMDR Act, it is not possible to take the view that the

-: 183 :-

minerals, which has been treated as a forest produce under the Act is liable to be struck down on the ground that "mineral" fall within the provisions of the MMDR Act and as such the State Legislature has encroached upon the field occupied by the Parliament. The Courts should not take a very narrow, pedantic and technical view of the matter, efforts of the Courts should be to harmonize both the legislations and make both the legislation operative in the respective fields in which they are intended to be given effect to both by the Parliament and the State Legislature, were the observations of this Court. It was held that the effect of declaration made in Section 2 of the MMDR Act is only to efface or take away the effect of any legislation made by the State Legislature if it encroaches upon the field or provisions covered under the provisions of the MMDR Act. It was further held as under: “The rights acquired by the appellants to exploit, tap, remove and transport the minerals from the lands in question by virtue of terms of the lease obtained by them, must be understood as subject to any regulations or

-: 184 :-

restrictions that may be imposed by the State Legislature to protect its forest wealth. While the State cannot encroach upon the field occupied by the Parliament under MMDR Act, the State, as noticed by us earlier, cannot also be denuded of its right to protect its property or its wealth and for that purpose to make appropriate legislation.”

After referring to certain decisions of the Hon’ble Supreme Court and this Court, it was held that the rules applicable to the transportation of the forest produce including minerals were applicable in respect of the leases and that Rules 144 to 148 of the Rules were not inconsistent with MMDR Act and Rules made thereunder.

The Division Bench after considering their respective contentions and the provisions of law as well as the judgment of the Hon’ble Supreme Court as well this Court held at paragraph - 11 as under: “11. From the law laid down by the Supreme Court in the case of Sudhir Ranjan Nath (supra), it is clear that when the question

-: 185 :-

arises as to whether the legislation made by the State Legislature is an encroachment in respect of the field occupied by the law made by the Parliament under the MMDR Act, the Court is required to examine both the legislations and the object and purpose of both the legislations. It is true that on account of the declaration contained in Section 2 of the MMDR Act the legislative field covered by Entry 23 of List II will pass on to Parliament by virtue of Entry 54 of List I, but in order to judge whether on that account the State Legislature loses its competence to pass the Forest Act, it is necessary to have regard to the object and purpose of the Forest Act and to the relevant provisions in the Forest Act and the Rules framed thereunder. In exercise of the power conferred on the Central Government under Section 13 of the MMDR Act, the Mineral Concession Rules 1960 have been framed. The object of these Rules appears to be for conservation of important minerals and for the efficient and economic working of mines in the national interest. Section 15 of the MMDR Act empowers the State Government to make Rules for regulating the grant of quarry lease,

-: 186 :-

mining lease and or other mineral concession in respect of minor minerals and for purpose connected therewith. The State Government, in exercise of the said power, has framed the Karnataka Minor Minerals Concession Rules. In exercise of the power conferred under Entry 17 A of List III, the State Legislation has enacted the Forest Act. The object and purpose of the Act is to consolidate and amend the law relating to forest and forest produce in the State of Karnataka and also to put an end to smuggling of forest produce, to protect and safeguard the forest produce, reserve forest, reserve trees and thus to protect and increase the forest wealth and its proper utilisation. As noticed by us earlier, Section 2(7) of the Act defines 'Forest produce'.”

(vii) The judgment of the Division Bench was assailed before the Hon’ble Supreme Court which granted Leave by order dated 09/01/2013. The Hon’ble Supreme Court permitted withdrawal of the appeals, as some of the issues raised in the appeals were under consideration by this Court in this batch of writ petitions, more specifically,

-: 187 :-

in W.P.No.2642/2009. The Hon’ble Supreme Court directed that this batch of petitions had to be decided uninfluenced by any observations made by the Division Bench in NMDC.

In M/s.Lakshminarayana Mining Co. and others, also where the Division Bench had similarly pronounced, petitioners therein were also permitted withdrawal of the civil appeals with directions as stated above. It is in the above background that this batch of writ petitions have been heard at length and in a comprehensive manner.

(c) What emerges from the aforesaid decisions can be summarized as under:

(i) In Gurusiddappa, the constitutional validity of Section 98-A of the Act was upheld while relating it to Entry 54 List II. The contentions in that case were considered in the backdrop of sale of forest produce by the State Government. No opinion was expressed on the question of validity of Section 98-A, if it was applied to levy tax on transactions other than sale. It was held that

-: 188 :-

Section 98-A did not suffer from the vice of double taxation. It was in addition to sales tax leviable on the sale of forest produce; it was held that the tax was neither compensatory or regulatory in nature nor was it a fee. The tax was also not in the nature of an excise duty and neither did it violate Article 265 of the Constitution.

(ii) In Pampapathi, the levy under Section 98-A of the Act was on the royalty amount paid by the lessees to the Department of Mines and Geology. This Court held that FDT under Section 98-A of the Act was not leviable on royalty payable to the State Government in regard to mining leases under the provisions of the MMDR Act and accordingly, struck down the demand notices issued in the year 1992-93.

(iii) In M/S.Lakshminarayana Mining Company, the imposition of cess was made by the Taluk Board under Section 143 of the Mysore Village Panchayats and Legal Boards Act, 1959 on mining activities carried on by the persons holding mineral concessions. It was held that the

-: 189 :-

levy of cess on mining rights by the Board, as per the impugned notifications, were unauthorized and was liable to be set aside.

(iv) The aforesaid judgment was approved by the seven Judge Bench judgment of the Hon’ble Supreme Court in India Cement Ltd., in the context of cess being levied on royalty on mineral rights under Sections 115 and 116 of Tamil Nadu Panchayats Act, 1958 as amended in the year 1964.

(v) In Evershine Monuments vs. State of Karnataka and others [W.P.No.14360/1984] a Division Bench of this Court held that Karnataka (Mineral Rights) Tax Act, 1984 was unconstitutional and void as legislative power of the State under Entry 23 of List II was denuded to that extent the field was occupied by MMDR Act.

(vi) In NMDC’s case a Division Bench of this Court held that insistence on obtaining permits/passes for the

-: 190 :-

transportation of minerals as forest produce by the State Government under Rules 144 to 148 of the Act was not an encroachment on the field occupied by Parliament under MMDR Act.

(vii) Of course, by order dated 09/01/2013, the Hon’ble Supreme Court has directed consideration of the present cases without being influenced by the observations made in NMDC’s case.

(d) In the above backdrop of legal frame work and judicial precedents, the present controversy with regard to the validity of the notification dated 16/8/2008 (Annexure- F in W.P. No.31191/2008) could be considered along with other questions which arise in these cases. The said notification reads as under:

“Forest, Ecology & Environment Secretariat NOTIFICATION No.FEE 248 FDP 2006, Bangalore, Dated: 16th August,2008 In exercise of the powers conferred by Sub- section(1) of Section 98-A of the Karnataka Forest

-: 191 :-

Act, 1963 (Karnataka Act No.5 of 1964), the Government of Karnataka hereby notifies the lease holder of mines and quarries situated in forest area for the purpose of the said sub- section. This will come into effect from the date of its publication in the Official Gazette. By order and in the name of the Governor of Karnataka Sd/- VADAGAVE BASAVARAJ Under Secretary to Government, Forest, Ecology & Environment Department”

The notification is issued under sub-section (1) of Section 98-A of the Act, notifying the "lease holder of mines and quarries situated in forest area" for the purpose of the said sub-section with regard to levy of FDT. By communication dated 23/08/2008 (Annexure-G of W.P.No.31191/2008, the value of the ore to be reckoned as consideration for the purpose of levy of tax has been enunciated. Annexure-H is a copy of the order dated 12/09/2008 issued by the Conservator of Forest

-: 192 :-

demanding FDT with effect from 01/09/2008 to be remitted by 10th of every month. Thus, the present controversy relates to levy of FDT on disposal of minerals as a forest produce by sale or otherwise. The said tax is sought to be levied at the time of release of minerals from the forest area as forest produce at the time of local sales and in respect of export sales based on the value shown in the invoices. Where ore is traded for local use, the consideration is decided based on the DMG/MML/NMDC rates whichever is higher. Thus, it becomes clear that the tax is not levied on royalty to be paid by the lease holders, which is paid for the grant of lease for exploitation of minerals. Therefore, at this stage itself, it can be held that all the decisions of this Court as well as of the Hon’ble Supreme Court relating to levy of tax on royalty are not applicable for the present case. In the above backdrop, the submissions of the respective parties could be considered.

-: 193 :-

SUBMISSIONS:

(7) PETITIONERS’ SUBMISSIONS:

(a) Sri. Ganesh, learned Senior Counsel, appearing in W.P.No.30927/2008 and connected matters, drew our attention to Sections 98-A and B of the Act and submitted that the Act came into force on 27/2/1964 after obtaining presidential assent. Sections 98-A and B were inserted with effect from 24/12/1975. The amendment to sub- section (1) of Section 98-A to include the words “or by a Corporation, owned or controlled by a body notified by the State Government” inserted by Act No.10 of 1989 is having a deeming operation from 14/12/1978. That on the basis of the said amendment, the impugned notification dated 16/08/2008 has been issued by the State Government to include lease holders of mines and quarries situated in forest areas within the nomenclature “a body notified” in sub-section (1) of Section 98-A of the Act. He contended that the object of Section 98-A is to levy FDT on forest produce disposed of by the State

-: 194 :-

Government or by a Corporation, owned or controlled by a State Government or by a body notified by the State Government. That the expression “body” must take its colour from the expression “State Government or by a Corporation, owned or controlled by the State Government” and therefore, it must be a State owned body or instrumentality of the State. Therefore, the expression “body” cannot extend to include private lease holders operating their mines and quarries in the forest area. Resorting to the doctrine of nositur a sociis and by relying on certain decisions of the Hon’ble Supreme Court in Godfrey Philips India Ltd. vs. State of U.P. [(2005)2 SCC 515] (Godfrey Philips India); Rainbow Steels Ltd., Muzaffarnagar and Birla Cotton Spinning and Weaving Mills Ltd., Delhi vs. CST U.P. and State of U.P. [(1981)2 SCC 141] (Rainbow Steels Ltd.); G.Radhakrishna Murthy and Company and others vs. Commercial Tax Officer-IVB, Vijayawada and others [(1997)8 SCC 37)] (G.Radhakrishna Murthy and Company) he contended that on the basis of the

-: 195 :-

expression “body” in sub-section (1) of Section 98-A of the Act, the impugned notification could not have been issued to notify private lease holders to pay FDT in respect of sale of mineral produce from the forest area, which is defined as forest produce under the Act. He, further contended that the expression “body” takes within its meaning, an association of persons or juristic entities and would not include individual miners or private juristic entities. In this regard reference was made to P.Ramanatha Aiyar’s “The Law Lexicon”; Legal Thesaurus by William C.Burton and Black’s Law Dictionary, Eighth Edition. He contended that the impugned notification dated 16/08/2008 should have made a specific reference to “a body” or a body, which is an instrumentality of the State and not to miners in general or as a class.

(b) He further, contended that a Division Bench of this Court in Gurusiddappa has held that FDT as a tax is relatable to Entry 54, List II and is held to be a sales tax, then, the levy of such tax is restricted by the provisions of

-: 196 :-

Articles 286 of the Constitution. Relying on a decision of the Hon’ble Supreme Court in Builders’ Association of India and others vs. Union of India [1989 (2) SCC 645] (Builders’ Association of India) and Gannon Dunkerley and Co. and others vs. State of Rajasthan and others [(1993)1 SCC 364] (Gannon Dunkerley and Company), he contended that there is an express bar for the levy of sales tax in respect of inter-state sales and export sales. Therefore, he submitted that even if his first contention based on the doctrine of nositur a sociis is not accepted by this court, the levy must be struck down on the basis of Article 286 of the Constitution wherever the levy is made on export sales or inter state sales.

(c) Thirdly, he submitted that the levy of FDT is not on the actual consideration, but it is on the basis of the notional charges notified by the Governmental entities which is contrary to what is envisaged under Entry 54 of List II. In this regard, reliance was placed on Gurusiddappa. Drawing our attention to the counter filed

-: 197 :-

on behalf of the State Government in W.P.No.13598/2008, it was submitted that the State Government has reckoned FDT to be a tax on sale, which is in consonance with Gurusiddappa’s case and the levy is in consonance with Entry 54 of List II.

(d) With reference to the demand made by the State, he contended that by way of an interim measure, 50% of the tax due has been paid: 25% by cash and 25% by submission of bank guarantee and payment of the remaining 50% has been stayed by this Court. He stated that this interim order is subject to the result of the writ petitions and in case the petitioners are successful, the amount paid must be refunded with interest. He, therefore, contended that the notification impugned in this writ petition may be quashed and the levy of FDT on lease holders of forest land for mining and quarrying purposes, be set aside.

-: 198 :-

(e) Sri.D.L.N.Rao, learned Senior Counsel appearing for certain writ petitioners contended that they are not lease holders. They are purchasers of ore from lease holders or State entities such as, Mysore Minerals Ltd., (MML) and later from Centrally Empowered Monitoring Committee (CEMC) constituted by the Hon’ble Supreme Court. He stated that some of the lessees of mines and quarries in forest area are also exporters and they are not involved in any domestic sales. That certain other lessees are involved in inter-state sales and there are others who sell the ore in the domestic market. That if FDT is to be held as a sales tax, then exporters and those lease holders who are involved in inter-state sales have to be exempted from the State tax in view of the restrictions placed on the State by virtue of Article 286 of the Constitution. He contended that even in respect of those petitioners who are buying ore from the State entities notified by the State Government are not liable to pay FDT having regard to the provisions of MMDR Act and the setting up of Compensatory Afforestation Management and Planning

-: 199 :-

Authority (CAMPA) Fund. As a consequence, the State Government has been denuded it of its right to impose any such tax. In this regard, he has invoked Article 254 of the Constitution and the doctrine of repugnancy and occupied field and relied on certain decisions of the Hon'ble Supreme Court in that regard, which shall be adverted to later.

(f) Drawing our attention to Section 98-A of the Act, he further contended that in respect of the forest produce notified in the table to proviso to sub-section (1) of Section 98-A, FDT could be levied at the rate of 12% on the amount of consideration. But in the instant case, though the tax to be levied is at 8%, by an inter-departmental correspondence, the levy has been enhanced to 12% of sale consideration, which is illegal. He contended that in respect of minor forest produce defined under Rule 2(6) of the Rules, the rate of tax is at 12% on the sale consideration and that in respect of iron ore or

-: 200 :-

manganese, it is only 8% on the sale consideration as they are not minor forest produce.

(g) He contended that Section 98-A has to be read with Chapter XII of the Rules, which deals with sale of forest produce by the application of doctrine of contemporaneous exposito. Rule 85 deals with methods of selling forest produce, which is by, (a) sale by auction or tender or tender-cum-auction; (b) sale at the sanctioned schedule of the rates in deposits; (c) sale by issue of licences and (d)at the sanctioned seigniorage rates. Provided that any other method may be resorted to with the prior sanction of the Government if the Conservator of Forest thinks it desirable to do so in the interest of the Department. The rates referred to with regard to sale at sanctioned scheduled rates shall be the scheduled rates sanctioned by the Chief Conservator of Forest from time to time and the seigniorage rates are specified in Rule 83. That sale of timber and other forest produce shall generally be held by open public auction, tender or tender-

-: 201 :-

cum-auction, but the Chief Conservator of Forest may accept individual offers at his discretion, in the interest of the Department.

(h) He also drew our attention to other rules in Chapter XII with regard to the conduct of sale of forest produce and contended that the aforesaid provisions are not applicable to lease holders of mines and quarries, who have been erroneously notified in the impugned notification dated 16/8/2008 as the said provision is applicable only to a State entity or instrumentality of the State because a sale has to be notified and published in the official gazette. Therefore, when a sale is made by a private miner, then FDT is not attracted, was the submission. He fairly stated that in the instant case, the tax is not levied on the royalty to be paid by the miner or lease holder, as that is outside the realm of the Act and it is covered under the MMDR Act, which is a Central legislation.

-: 202 :-

(i) He, thus, contended that when the State Government leases lands in the forest areas as mines and quarries, it is not a disposal of forest produce by the State Government or its entities. That grant of quarrying leases by the State Government to miners is also not a sale nor can it come within the expression “otherwise” mentioned in sub-section (1) of Section 98-A of the Act as the grant of mining leases and quarries is covered under the MMDR Act and the State Government has a very limited role in that regard under the provisions of the MMDR Act and the Rules made thereunder. He, therefore contended that on consideration of levy of FDT in the context of Chapter XII of the Rules in the matter of forest produce concerning minerals, the levy cannot be on the minerals extracted by the individual miners or other private miners even if they are juristic entities from the forest area. FDT is only restricted to disposal of forest produce by the State Government or by a Corporation, owned or controlled by a State Government or a body notified by the State Government which is a body akin to an instrumentality of

-: 203 :-

the State or owned and controlled by the State and hence, no liability to collect FDT can be imposed on the lease holders when they sell or export the minerals mined or ores extracted from the forest areas. He invoked the principles of ejusdem generis while interpreting the expression “a body notified” in Section 98-A of the Act, on the basis on which the impugned notification has been issued, by which, FDT has been imposed on lease holders and miners.

Sri D.L.N.Rao submits that M/s.JSW Steels Limited has purchased ore in e-auction conducted by Monitoring Committee, in terms of the direction of the Supreme Court of India. They had to pay Forest Development Tax at the rate of 12% on the sale value. He, further, submits that the ore sold through e-auction and purchased by M/s.JSW Steels Limited is excavated by the NMDC from their two mines and, also, excavated by the private lessees coming under categories ‘A’ and ‘B’ mines. They are, therefore, not liable to pay Forest Development Tax.

-: 204 :-

He, further, submits that the petitioner in W.P.No.14157/2008 is owned and controlled by the Government of India engaged in trading of iron ore and does not have any lease of its own. He submits that the petitioner purchased from private lessees and as such, are not required to pay Forest Development Tax.

He, also, submits that the writ petitioners in W.P.Nos.15686/2011, 15687/2011, 15689/2011, 15692/2011 and 15693/2011 have put up sponge iron plants and have purchased ore from a lessee and they are not liable to pay Forest Development Tax.

(j) With reference to one of the petitioners, namely M/s.JSW Steels Limited earlier known as M/s. Jindal Vijayanagar Steel Limited, it has purchased minerals from Mysore Minerals Limited (MML), which is a lessee. That MML is not a body which has been notified by the State Government and when private lease holders cannot be imposed with the levy of FDT, the same cannot be done on

-: 205 :-

MML also, which has sold the ore as a lease holder, was the contention.

(k) Drawing our attention to Section 116 of the Act, he submitted that MMDR Act has an overriding effect on the Act in question and keeping in mind the E.P. Act and F.C. Act, he contended that the State Government has been denuded of its competence to levy FDT. In this regard, reliance was placed on T.N.Godavarman Thirumulpad vs. Union of India and others [2011 (15) SCC 648] (Godavarman) having regard to Article 254 of the Constitution.

(l) With reference to his written submissions, he contended that it is the fourth attempt made by the State Government to levy FDT on minerals as forest produce and that the previous attempts have been unsuccessful.

(m) Sri.Raghavacharyulu, appearing for National Mineral Development Corporation (NMDC), which is a public sector undertaking of the Central Government and a

-: 206 :-

lessee in the State of Karnataka, contended that the definition of "forest produce" in Section 2(7)(b)(iv) must be given a contextual meaning and not a literal meaning. In this regard, he placed reliance on Reserve Bank of India vs. Peerless General Finance and Investment Company Limited and others [(1987) 1 SCC 424] with regard to construction of statute after ascertaining its legislative intent and the context and scheme of the Act.

(n) With reference to the List of dates submitted by him during the course of his submissions he contended that pursuant to the 42nd amendment made to the Constitution, the subject “forest” has been deleted from Entry 19 of List II and included in the Concurrent List as Entry 17A with effect from 03/01/1977. From that date onwards, wherever the field is occupied by a Central legislation such as MMDR Act, F.C. Act or E.P. Act in respect of those legislations, the State is denuded of its power from making law on the subject.

-: 207 :-

(o) He also contended that an administrative notification dated 16/08/2008 cannot go beyond the provisions of Section 98-A. When that Section uses the expression “a body notified”, it would mean a body which is either a State owned Corporation or an instrumentality of the State over which the State has control, it cannot include a new category or class such as holders of mining leases. He submitted that bodies such as Karnataka Forest Development Corporation (KFDC) or such other bodies including societies dealing with forest produce could come within the nomenclature used in sub-section (1) of Section 98-A of the Act, but the impugned notification dated 16/08/2008 cannot include mining lease holders within the nomenclature "body notified".

(p) With reference to Article 254 of Constitution of India, Sri Raghavacharyulu, contended, that wherever State or Central laws are inconsistent with each other on the subjects mentioned in the Concurrent List, then the State law would have to yield to the Central laws, unless

-: 208 :-

the latter has received the assent of the President. That in the instant case, CAMPA Fund has been set up by the Central Government, the source of the said fund is from the F.C. Act. Whenever permissions are granted by the Central Government in respect of non-forest activities to be carried on in forest areas, the fees and other payments made by various persons seeking such permissions and approval including mining lease holders in forest areas, get accumulated in the Fund and as and when a State Government submits plan of action for the afforestation or rejuvenation of forest, the Central Government release the fund to the State. That in view of CAMPA Fund being set up under the E.P. Act and the source of such fund being out of F.C. Act, which are both Central enactments, the State Government cannot collect FDT in respect of minerals disposed of from mines and quarries in forest areas, from the lease holders.

(q) With reference to the definition of forest produce in Section 2 (7) of the Act, which include minerals,

-: 209 :-

he contended that the definition by an artificial classification has included minerals as a forest produce, which is inconsistent with the expression “forest produce” as such. Elaborating on the said submission he stated that minerals and products of mines and quarries are inorganic in nature, whereas the forest produce are essentially refer to biological or zoological products; flora and fauna, which are organic in nature and not inorganic substance. He, therefore, contended that minerals have to be excluded from the definition of forest produce, in which event, the notification dated 16/08/2008 would have to be quashed and levy could not be made on the lease holders or persons who purchased mineral products from State entities.

(r) Drawing our attention to various judgments of the Hon’ble Supreme Court, he contended that NMDC was not liable to pay FDT when it sold mineral produce in the State of Karnataka as it did so as a lease holder.

-: 210 :-

(s) Sri Udaya Holla, learned senior counsel appearing in W.P.13595/2008 and connected matters drew our attention to several paragraphs of the judgment of this Court in Pampapathi’s case and contended that when the State Government intended to tax forest produce on the royalty paid by lease holders by invoking Section 98-A of the Act, the same was struck down by this Court. He also drew our attention to the decisions of this Court as well as Supreme Court in the case of Lakshminaryana Mining Company, India Cement Limited, M/s.Orissa Cements Limited vs. State of Orissa [AIR 1991 SC 1676] (M/s. Orissa Cements Ltd.,) and Saurashtra Cement and Chemical Industries Limited vs. Union of Indian [AIR 2001 SC 8], as well as the judgment of this Court in Gurusiddappa, to contend that the State Government has no competence to tax on mining rights or on minerals as a forest produce.

(t) Adverting to the expression ‘a body’ in Section 98-A of the Act, he contended that the same must be

-: 211 :-

interpreted by application of the principle of ejusdem generis. In this regard, reliance was placed on Commissioner of Income tax, Udaipur, Rajasthan vs. Mcdowell and Co. Limited [(2009) 10 SCC 755] (Mcdowell and Co.); M.K.Ranganathan vs. Government of Madras [AIR 1955 SC 604] (M.K.Ranganathan) and M/s.Parakh Foods Limited vs. State of A.P. [AIR (2008) SCC 2012] (M/s.Parakh Foods Limited). He contended that the expression ‘a body’ to be notified by the State Government must be an instrumentality of the State Government or a body which is controlled by the State Government and that private and individual miners cannot be notified for the purpose of levy of FDT.

(u) Further, adverting to Article 286 of the Constitution of India, he contended that a State Legislature cannot make law to levy sales tax on export sales or inter state sales as it is only the Parliament which has the competency to do so and that where the minerals as a forest produce are being exported FDT is not leviable. In

-: 212 :-

this regard, reliance was placed on State of Travancore, Cochin vs. Shanmugha Vilas Cashewnut Factory, Quilon [AIR 1953 SC 333] (Shanmugha Vilas Cashewnut Factory) and State of Orissa vs. Minerals and Metals Trading Corporation of India Limited [1994 supp. (3) SCC 109] (MMTC of India Ltd.). He contended that there is an express bar against the State Legislature from levying sales tax on export sales and inter state sales on any goods and therefore, the demand notices issued to exporters of minerals as a forest produce are ultra vires Articles 286 of the Constitution. He also contended that the tax was being levied at 12% instead of 8%, which is also illegal. He therefore, submitted that the petitioners for whom he has represented are entitled to refund of tax collected and in this regard, he relied upon certain decisions of the Hon’ble Supreme Court namely, State of M.P. vs. Bhailal Bhai [AIR 1964 SC 1006], Salonah Tea Company Limited vs. Superintendent of Taxes, Nowgong and others, [(1988) 1 SCC 401] and

-: 213 :-

U.P.Pollution Control Board vs. Kanoria Industrial Limited [(2001) 2 SCC 549].

(v) Summarizing his arguments, he contended that Section 98-A of the Act, empowers the State Government to levy FDT at 8% sales consideration in respect of forest produce, disposed of by the State Government or by a Corporation, owned or controlled or a body notified by the State Government. That the impugned notification dated 16/08/2008 issued by the State Government notifying “lease holders of mines and quarries situated in forest area” as a body is ultra vires Section 98-A of the Act. That FDT cannot be collected on the basis of the value shown in the invoice in respect of export of minerals as a forest produce violating the Constitutional provisions. That one of the petitioners, for whom he has represented, being an export oriented unit, levy of FDT on the invoice value is hit by Article 286 of the Constitution. Referring to Rules 85 to 93 of the Rules, it was contended that it is only when the State Government or a governmental body disposes of

-: 214 :-

forest produce that FDT is attracted and that Section 98-A cannot be extended to private or individual entities. It was also argued that minerals extracted from forest areas are dearer as amounts had to be paid to the Central Government, in the form of net present value and compensatory afforestry charges under the provisions of the F.C. Act and levy of FDT would make such minerals costlier. Hence, he sought quashing of the impugned notification and refund of FDT paid to the State Government with interest.

(w) Sri Raghavan, learned senior counsel, appearing in W.P.31183/2008 and connected matters at the outset contended that Section 98-A of the Act does not satisfy the requirement of a taxation law.

Referring to Commissioner, Central Excise and Customs, Kerala vs. M/s. Larsen and Toubro Limited [2015 SCC Online SC 738], he contended that the section lacks the essential ingredients of a tax law. That there is no definiteness as to from whom tax has to be collected and

-: 215 :-

who has to remit the tax. There is no machinery for collection of tax and the person who has to remit the tax cannot be notified by an executive order, but must be part of the statute. That this is a case of abdication of legislative power as the State Legislature has left it to the executive to notify the body who has to collect and remit the tax to the State Government. He also contended that Section 98-A is not relatable to Rule 102 of the Rules. Reliance was also placed on District Mining Officer vs. Tata Iron and Steel Co. [(2001) 7 SCC 358] to contend that where there is no machinery envisaged for collection and recovery of tax, in such as case, there can be no collection of tax at all.

(x) Placing reliance on K.T.Moopil Nair vs. State of Kerala [AIR 1961 SC 552], it was contended that Article 265 imposes a limitation on the taxing power of the State insofar as it provides that the State shall not levy or collect tax, except by authority of law i.e., to say, a tax cannot be levied or collected by a mere executive fiat. It

-: 216 :-

has to be done by authority of law, which must mean a statute. Such a law must be within the competence of the Legislature imposing the tax and the tax must be subject to the conditions laid down in Article 13 of the Constitution was the submission.

(8) SUBMISSIONS ON BEHALF OF THE STATE AND OTHER RESPONDENTS:

(a) Learned Advocate General appearing for the State and other respondents, while defending the impugned notification dated 16/08/2008, at the first instance, drew our attention to the provisions of the Mysore Forest Regulations of 1900 and the Indian Forest Act of 1927 and the Act in question wherein, consistently minerals from the forest has been defined to be a forest produce and therefore, the definition of forest produce including minerals in Section 2(7) (b) (iv) has been consistently in force for over a century both in the Central as well as State enactments.

-: 217 :-

(b) Drawing our attention to Section 116 of the Act, he contended that the Act which has received the assent of the President on 28/01/1964 was enacted when the subject “forest” was in the State List. The provisions of the Act are in addition to and not in derogation of the MMDR Act, which is a Central Act. That by the 42nd amendment while inserting Entry 17-A dealing with forests in the Concurrent List, simultaneously, Article 48-A and Article 51-A (g) were also inserted, they being a Directive Principle of State Policy and Fundamental Duty respectively.

(c) He contended that under Section 98-A of the Act, the liability is on the purchaser of the forest produce to pay the tax when there is a disposal of forest produce by sale or otherwise. That the proceeds of the tax is one of the sources of Forest Development Fund created under Section 98-B of the Act and the object of setting up of the Fund is for forest plantation and other incidental and ancillary objects. Drawing our attention to M.C.Mehta vs.

-: 218 :-

Kamal Nath [(1997) 1 SCC 388] reference was made to the public trust doctrine to contend that it is the duty of the State Government to protect forest and environment and in order to salvage degradation of forest on account of non-forest activities such as mining and extraction of minerals, the tax is being levied for the purpose of afforestation. In this regard, reference was also made to T.N.Godavarman Thirumulpad vs. Union of India, [(2006) 1 SCC 1], wherein, Net Present Value (NPV) and the Compensatory Afforestation Fund Management and Planning Authority (CAMPA) have been constituted for the purpose of afforestation and such other objects consequent upon mining and quarrying operations in forest areas. Therefore, learned Advocate General sought to justify levy of the tax on the basis of the judgments of the Hon’ble Supreme Court.

(d) A comparative statement of the levy made by the Central and State Government namely, NPV, Compensatory Afforestation (CA) and FDT was submitted

-: 219 :-

with regard to the legal competence to levy the said impositions; the statutes under which it is levied; the object of levy; as to when it is levied; for what purpose it is levied; to which fund the levy is credited to; the rate at which it is levied and collected; the person who has to pay the levy and the status of implementation of the three funds.

(e) He contended that the petitioners, who are lessees, who are only collecting agents and who are not supposed to pay the tax as the tax is paid by the purchaser and therefore, the petitioners who are the lease holders have no locus standi to file these writ petitions.

(f) It was also contended that export of minerals is banned since the year 2010 and mining activity is banned from 2009 and the sale of iron ore is only through e- auction conducted by the Monitoring Committee constituted by the Hon’ble Supreme Court and FDT being levied under the Act has received the approval of the Hon’ble Supreme Court. In this regard, reliance was

-: 220 :-

placed on the judgment of the Hon’ble Supreme Court in the case of Samaj Parivartana Samudaya vs. State of Karnataka [(2013) 8 SCC 154] and orders dated 23/09/2011 and 13/04/2012 referred to therein. In that judgment the mining leases have been classified in different categories on the basis of the level of illegalities found. As FDT is leviable in respect of auction of iron ore which has been approved by the Hon’ble Supreme Court, for this reason also, the petitions are not maintainable, was the submission of the learned Advocate General in respect of the period subsequent to 23/09/2011.

(g) By way of interjection learned counsel for the petitioners were quick to point out that the challenge herein is only prior to 2011. In response to this, learned Advocate General contended for the period from 2008 to 2011 wherever leases have been executed in favour of the petitioners herein they have undertaken to collect FDT and therefore, for this reason also the petitions are not

-: 221 :-

maintainable as the petitioners are estopped from challenging the notification dated 16/08/2008.

(h) Learned Advocate General next contended that FDT is not a tax but a fee and therefore, is leviable under Entry 47 List – III. Thus, the State Legislature has competence to levy the charge at the time of sale or otherwise disposing mineral as a forest produce. The justification for levy of FDT according to the State was, that the lease holders made huge profits by the sale of ore extracted from the forest which ultimately lead to degeneration of the natural resource and therefore, they had the responsibility to pay FDT for regeneration of forests.

(i) Relying on judgments of the Hon’ble Supreme Court on the distinction between levy of a tax and fee, it was contended that FDT in substance is a fee, which is levied at the time of sale of forest produce and the amount so collected is one of the sources of Forest Development Fund, which has been created by the State Government for

-: 222 :-

the purpose of afforestation and regeneration of forests in the State. The said judgments are as under:-

Municipal Corporation of Delhi and others vs. Mohd Yasin [1983 (3) SCC 229]; City Corporation of Calicut vs. Thachambalath Sadasivan and others [1985 (2) SCC 112]; Vijayalakshmi Rice Mill and Others vs. Commercial Tax officers, Palakol and Others [2006 (6) SCC 763] and Delhi Race Club Limited vs. Union of India and Others [2012 (8) SCC 680].

(j) In this regard reliance was placed on Dewanchand Builders and Contractors vs. Union of India [(2012) 1 SCC 101], in which case, levy of cess under Building and other construction workers [regulation of employment and conditions of service] Act 1996 and the Rules made thereunder were considered. It was held therein that the true test to determine the character of a levy is the primary object of the levy and essential purpose intended to be achieved thereby.

-: 223 :-

(k) Refuting the contentions of the petitioners that levy of FDT is contrary to central laws, learned Advocate General contended that neither the doctrine of repugnancy nor the doctrine of occupied field is applicable to the present cases. Referring to a comparative table and contrasting the object, purpose and the scheme of F.C. Act and as well as MMDR Act (Central Act) with Karnataka Forest Act, 1963 (State Act), he contended, that the object and scheme of the three Acts are distinct and do not overlap and therefore, the aforesaid Central Acts are not in conflict with the State Act.

(l) In this regard, it was submitted that the doctrine of pith and substance would have to be applied when the State Act falls within the scope of Entry 17-A of List-III and the said Act in no way entrenches upon the Central Acts. It was contended that even if there is an incidental encroachment to any Central Act that would not make the State Act unconstitutional. In this regard reliance was placed on B.Viswanathiah and Company and Others

-: 224 :-

vs. State of Karnataka and Others [(1991) 3 SCC 358], in the context of silk industry.

(m) He also contended that a levy of tax or fee could be justified on not just one entry in a list under the VII Schedule of the Constitution, but on multiple entries, by placing reliance on [(2004) 9 SCC 755], M.P.Vidyut Karamchari Sangh vs. M.P.Electricity Board.

(n) Further, referring to Section 2 of MMDR Act, it was contended that regulation of mines and development of minerals to the extent provided in that Act is distinct from imposition of tax on minerals as a forest produce. It was contended that levy of tax as a forest produce in no way is connected with any provision of the MMDR Act.

(o) Referring to F.C. Act and Karnataka Forest Act, 1963, it was contended that the latter Act including Section 98-A and 98-B are provisions enacted prior to the F.C. Act and Parliament is deemed to have approved what was prevailing in the State at the time of enacting FC Act.

-: 225 :-

In this regard, reliance was placed on Vijay Kumar Sharma vs. State of Karnataka and Others [(1990) 2 SCC 562], which was a case dealing with Entries in List-II and List-III pertaining to contract carriage. It was contended that there is no provision regarding FDT in any Central Act in respect of minerals as a forest produce. (p) While construing the scope of the entries in the three Lists the approach that has to be adopted by a Court of law, was stated, by placing reliance on [(2004) 10 SCC 201], State of W.B. vs. Kesoram Industries Ltd., and Others (Kesoram). As far as the taxing power of a State legialature to enact a taxation statute/provision is concerned, it was contended that taxing power is always exclusive and that power to tax cannot be deduced from a general legislative entry as an ancillary power.

(q) contending that if the doctrine of pith and substance is applied, then the provisions of the Central Acts and the State Acts could be read harmoniously and could co-exist. Learned Advocate General sought to

-: 226 :-

demonstrate this by reference to three decisions of the Hon’ble Supreme Court namely, Hingir Rampur Coal Company Ltd., and Others vs. State of Orissa and Others [AIR 1961 SC 459]; State of Orissa vs. M.A.Tulloch and Co. [AIR 1964 SC 1284] and Mineral Area Development Authority and Others vs. Steel Authority of India and Others [(2011) 4 SCC 450].

(r) Continuing the arguments, Sri Ponnanna, learned Addl. Advocate General, placed reliance on Kannan Devan Hills Produce Co. Ltd., vs. State of Kerala [(1972) 2 SCC 218], wherein, the interpretation of Entry-52 and 54 of List-I and Entry-18 of List-II and Entry 42 of List-III came up for consideration in the context of Tea Act of 1953.

(s) With regard to the expression “a body notified by the State Government” in Section 98-A of the Act, learned Additional Advocate General contended that the same must be given a plain and natural meaning. That there are three different categories or genus in

-: 227 :-

Section 98-A of the Act, i) State Government; (ii) Corporation, owned or controlled by the State Government and (iii) a body notified by the State Government. Therefore, when forest produce is disposed of by sale or otherwise by any of the three categories or entities, FDT has to be levied. He submitted that the intention of State Legislature was to distinguish between the three different categories or genus and that “a body notified by the State Government” need not be an entity owned or controlled by the State Government.

(t) Placing reliance on the meaning of “body” as given in Merriam Webster’s Dictionary, he contended that an individual person or an entity could come within the expression of “a body”. He therefore, contended that neither the doctrine of nositur a sociis nor the principle of ejusdem generis were applicable while interpreting sub- section (1) of Section 98-A of the Act. He contended that the notification impugned in these writ petitions is within the scope of Section 98-A of the Act and hence, sought to

-: 228 :-

repel the contention of the petitioners that it is ultra vires Section 98-A of the Act.

(u) In this regard, reliance was placed on Jage Ram and Others vs. State of Haryana and Others [(1971) 1 SCC 671], Rohit Pulp and Paper Mills Ltd., vs. Collector of Central Excise Baroda [(1990) 3 SCC 447], and Grasim Industries Ltd., vs. Collector of Customs, Bombay [(2002) 4 SCC 297].

(v) With regard to the demand for refund of tax paid by the petitioners, learned Additional Advocate General, submitted, that in the event petitioners succeed, there can be no refund of the tax paid as the amounts collected has been utilized by the State Government for afforestation and forest plantation and it has been spent away. In this context reliance was placed on Mafatlal Industries Limited and others vs. Union of India and Others [(1997) 5 SCC 536] (Mafatlal Industries).

-: 229 :-

With the above submissions the State and other respondents sought dismissal of the writ petitions.

(9) ARGUMENTS BY WAY OF REPLY:

(a) By way of reply, Sri. Ganesh, learned counsel for some of petitioners contended that the petitioners have every right to maintain these writ petitions. Their locus standi to file these petitions flows from the fact that the lessees are assessees and have the responsibility of collecting the tax along with sale consideration. Their status under Section 98-A of the Act is analogous to registered dealers under Section 9 of the Karnataka Value Added Tax Act, 2005. Therefore, there is no substance in the contention of the State that the petitioners, who are lessees have no locus standi to maintain these writ petitions. Reference was made to Pampapati, wherein the lease holders had filed the writ petitions, assailing levy of FDT on the royalty paid by them on the mining leases. In that batch of writ petitions, the locus standi of the lease holders to assail the demand notices was recongised and

-: 230 :-

they were given reliefs. The judgment in Pampapati has been upheld by the Hon’ble Supreme Court and therefore, at this stage, the locus standi of the petitioners, who are lease holders to file these writ petitions cannot be raised, was the submission.

(b) Another reason cited by the learned Advocate General with regard to the maintainability of these writ petitions was, the lessees had given an undertaking to pay the taxes while entering into lease agreements with the State Government. Therefore, the petitioners, as lease holders, were estopped from approaching this Court, assailing their obligation to pay the tax. This contention was refuted by the learned Senior Counsel for the petitioners by contending that there was no such reference made in the lease agreements with regard to payment of the FDT and therefore, there was no merit in this contention put forth on behalf of the State.

(c) With regard to the State's contention that the levy of FDT had been approved by the Hon’ble Supreme

-: 231 :-

Court in the matter of e-auction of iron-ore, it was contended on behalf of petitioners that the challenge in these writ petitions was with regard to the period prior to 23/9/2011 and not for the subsequent period. Therefore, it was contended that there was no merit in the preliminary objections raised on behalf of the State with regard to the locus standi of the petitioners or the maintainability of these writ petitions.

(d) It was next contended that constitutional validity of Section 98-A was not challenged by the petitioners, but notification dated 16/8/2008 has been assailed. That the Division Bench of this court, in Gurusiddappa, has upheld the levy of FDT as a tax. That judgment has attained finality and has been followed in Pampapati and hence, at this point of time the question as to whether the levy of FDT is indeed a tax or a fee is no longer res integra, was the submission.

Learned Senior Counsel for the petitioners, therefore, contended that the argument of learned Advocate General on behalf of the State that the

-: 232 :-

levy is a fee was wholly unwarranted and contrary to the decision of the Division Bench of this Court in Gurusiddappa, which is a binding precedent.

(e) It was next contended that Section 98-A used the expression "a body". Such an expression cannot take within its meaning an individual or natural person. It can only refer to a specific body such as a collection or group of persons. Although Gurusiddappa was decided prior to the amendment made to Section 98-A, incorporating the words, “a body notified by the State Government”, the said decision holds good even after amendment and that the expression “a body" does not include a private player as it takes its colour from the other words in the section. This is because there is a presumption against implicit alteration of law. Any change in the intention of the Legislature to include private persons within the scope of Section 98-A must be made by express words and therefore, the notification dated 16/8/2008 is ultra vires Section 98-A,

-: 233 :-

was the submission. In this regard, it was reiterated the doctrine of nositur a sociis applies to the present case.

(f) It was also reiterated that FDT being in the nature of a sales tax and relatable to Entry 54 of List II, Article 286 squarely applies and the restrictions mentioned therein is applicable to section 98-A of the Act and hence, FDT cannot be applied to export sales as well as inter-state sales.

(g) With regard to the issue of refund of tax paid, our attention was drawn to the decision of this court in Pampapati to contend that in that case refund was granted, which decision has been upheld by the Hon’ble Supreme Court. That in these cases, there is a specific interim order passed and having regard to the nature of the interim order, the petitioners are entitled for refund of tax paid with interest, in case they succeed in the writ petitions. It was contended that the State was not justified in raising the plea of unjust enrichment when the payment of tax has been made herein pursuant to an

-: 234 :-

interim order passed in the writ petitions. In this context, reliance was placed on judgment of the Bombay High Court, affirmed by Hon’ble Supreme Court in Suvidhe Ltd., vs. Union of India [1996 (82) ELT 177 (Bom.) and 1997 (94) ELT A-159 (SC)] respectively. In order to distinguish Mafatlal Industries cited by the learned Addl. Advocate General, it was contended that in that case there was a scheme under Excise Law altogether different from what is contemplated in the present case with regard to refund and therefore, the said judgment is not applicable herein. It was further contended herein that there would be no fiscal chaos and if the refund was allowed with interest as the collection of FDT has been maintained in a separate fund, called Karnataka Forest Development Fund (KFDF) and the said fund cannot be expended for any other purpose apart from raising forest plantation and for such other purpose ancillary thereto. That in the instant case, there are no details made available with regard to the manner in which the tax amount deposited by the petitioners has been spent pursuant to the interim order

-: 235 :-

passed by this court. Thus, refuting the submission made on behalf of the State, learned Senior Counsel for petitioners submitted that the writ petitions may be allowed in toto.

(h) Sri Udaya Holla, learned Senior Counsel appearing for some of the petitioners, once again drew our attention to Article 286 of the Constitution and contended that there can be no imposition of sales tax on export of iron ore even though minerals or ore are forest produce. He drew our attention to the fact that initially, in these writ petitions, there was an interim order of absolute stay granted by this Court and subsequently, the interim order was modified. He also submitted that no tax was collected by the lessees on inter state or export sales, but on the other hand, tax has been paid on such sales pursuant to the interim order of this Court. In the event of the petitioners succeeding, refund of tax must be ordered with interest at the rate of 18% p.a.

-: 236 :-

(i) Continuing the said argument learned Senior Counsel Sri. D.L.N.Rao, submitted that this is the fourth attempt made by the State to collect FDT on minerals as a forest produce. That in case the petitioners succeed, the refund of tax must be with interest at 18% p.a. as that is the rate fixed under sub-section (1) of Section 98-A of the Act with regard to the collection of arrears of tax by way of recovery. He also submitted that Section 98-A has to be read along with Chapter XII of the Rules with regard to the manner of sale of minerals as a forest produce. Further, subsequent to the amendment made to sub-section (1) of Section 98-A of the Act, only bodies such as Karnataka Forest Development Corporation (KFDC) could collect the tax at the time of sale of forest produce. He contended that one of the petitioners, namely M/s.Jindal Vijayanagar Steel Limited had purchased the ore from Mysore Mineral Corporation Limited, which is a lessee. Therefore, the lessee had sold the mineral to the petitioners not as a body owned or controlled by the State Government. He, therefore, submitted that the impugned notification dated

-: 237 :-

16/08/2008 was not applicable to Mysore Minerals Corporation Limited and that the petitioners were not required to pay FDT. He also recapitulated his submission on repugnancy, under Article 254 of the Constitution.

(j) Sri Raghavacharyulu, contended that the Amendment Act of 1989 namely, Act 10 of 1989, which inter alia amended Section 98-A of the Act did not have assent of the President though originally the Act had received Presidential assent. That the State Legislature was denuded of legislative competence to levy FDT on minerals as a forest produce. That the petitioners for whom he was representing namely, NMDC was a Government of India concern and a lessee excavating minerals in the State of Karnataka. The ore was sold by it as a lessee and therefore, NMDC could not come within the expression "body notified by the State Government" in Section 98-A of the Act. He also contended that by virtue of amendment made to MMDR Act on 12/1/2015 a Central

-: 238 :-

Fund has been created and therefore, the payment of FDT has become redundant.

(k) Sri.Sachindra Karanth, learned counsel appearing for Steel Authority of India (SAIL) submitted that one of its entities namely VISL was a lessee and was granted permission for extraction of limestone for utilisation as captive consumption and there was no SAIL as far as sale is concerned and therefore, Section 98-A is not applicable to it.

(l) Sri. Srinivas, learned counsel appearing for some of the petitioners contends that the expression “owned” or “controlled” found in Section 98-A of the Act has been interpreted in several judgments and recently by a Seven Judge Bench of the Hon’ble Supreme Court in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and others [(2002) 5 SCC 111], which is applicable in the instant case, although that judgment was rendered in the context of Article 12 of Indian Constitution.

-: 239 :-

Petitioners’ counsel submitted in unison that writ petitions may be allowed. (10) POINTS FOR CONSIDERATION: Having heard learned counsel for parties at length, the following points would arise for our consideration: i) Whether the mining or quarrying lease holders of minerals in forest areas have locus standi to maintain these petitions, assailing the levy of FDT on purchasers or consumers of minerals as a forest produce? ii) Whether the notification dated 16/8/2008 is ultra vires Section 98-A of the Act as it is contrary to the intendment of the expression, "a body notified by the State Government" in the said Section? iii) Whether FDT is a tax leviable within the scope of Entry 54 List II and not a fee within the scope of Entry 47 of List III? iv) Whether FDT could be levied in the nature of a sales tax on minerals as forest produce, when the same are exported or sold in the course of

-: 240 :-

inter-state trade ? In other words, whether the levy of FDT is hit by Article 286 of the Constitution?

v) Whether the state Legislature is denuded of its power to levy FDT on the disposal of minerals as forest produce, having regard to Entry 54 of List I and MMDR Act and the declaration made under Section 2 of the said Act? In other words, whether the general power of “regulation and control” of minerals includes the power of taxation?

vi) Whether, having regard to the F.C. Act and E.P. Act, the State Government is denuded of its power to levy FDT having regard to Article 254 of the Constitution of India?

vii) Whether FDT could be levied at the rate of 12% on the sale consideration when sub-section (1) of Section 98-A states that it could be levied at the rate of only 8% on the amount of sale consideration paid thereon?

-: 241 :-

viii) In the event the petitioners succeed in these writ petitions, whether they are entitled to refund of FDT paid by them, with interest?

ix) What order?

(11) Re: Point No.(i):

Whether the mining or quarrying lease holders of minerals as a forest produce have the locus standi to maintain these petitions assailing the levy of FDT on purchasers or consumers of minerals as a forest produce?

(a) With regard to the locus standi of petitioners, who are lease holders to maintain these writ petitions, the State has raised a preliminary objections as also with regard to maintainability of these writ petitions on three grounds. Firstly, that the petitioners, who are lease holders are not burdened with the payment of FDT as they are only the collecting agents and the tax had to be paid by the purchasers for minerals as forest produce. That FDT is an indirect levy and the lessees have, only, to collect the

-: 242 :-

tax and remit it to the State Government. Secondly, at the time of entering into lease agreement with the State Government, the lessees had given an undertaking to remit FDT and therefore, they are now estopped from approaching the Court. Thirdly, that levy of FDT has been accepted by the Hon'ble Supreme Court and is a part of the scheme of e-auction, approved by the Hon'ble Supreme Court with effect from 23/9/2011. Therefore, the FDT has to be remitted by the petitioners herein.

The arguments contrary to the above, made on behalf of the petitioners, have been narrated in detail and it is unnecessary to reproduce the same here.

(b) On consideration of the rival contentions, we find that there is no substance in the preliminary objections raised on behalf of the State both on the ground of locus standi as well as on the maintainability of the petitions. The petitioners, who are the lessees, are in the position of assessees. They are obliged to collect the tax along with the sale consideration when they dispose of

-: 243 :-

minerals as a forest produce under sub–section (2) of Section 98-A of the Act, assuming, that notification dated 16/08/2008 is valid and it applies to them. Therefore, they have the locus standi to assail the notification dated 16/8/2008. Moreover, lease holders had locus standi to assail levy of FDT on royalty, which has been recognised by this court in Pampapati, which has been upheld by the Hon’ble Supreme Court. Even if the leaseholders had given an undertaking to pay FDT at the time of entering into lease agreement with the State Government, the same is subject to the levy of FDT being in accordance with law. Assuming for the sake of argument that the petitioners had undertaken to pay FDT, have not waived their right from assailing the validity of FDT, nor are they estopped from approaching a Court of law, challenging the validity of the levy. Even when the Hon’ble Supreme Court has permitted e-auction of iron-ore through the Monitoring Committee from 23/09/2011 onwards, it is on the basis that levy of FDT being valid and in accordance with law. The direction of the Hon’ble Supreme Court to collect FDT

-: 244 :-

at the time of sale of iron would not imply that a challenge to such a levy is barred. The Hon’ble Supreme Court’s direction is on the premise that the levy is valid. More over, it is the lease holders of mines and quarries in forest areas who have been notified by notification dated 16/08/2008 under sub-section (1) of Section 98-A of the Act.

(c) Further, in these cases, the challenge to the levy of FDT is for a period prior to 23/9/2011 for which period the order of Hon’ble Supreme Court is not applicable. Therefore, there is no merit in the preliminary objections raised on behalf of the State with regard to maintainability of the writ petitions and hence, Point No.(i) is answered in favour of the petitioners, who are mining or quarrying lease holders in forest areas and it is held that they have the locus standi to file these writ petitions and the writ petitions are maintainable.

-: 245 :-

(12) Re: Point No.(ii):

Whether the notification dated 16/8/2008 is ultra vires Section 98-A of the Act as it is contrary to the intendment of the expression "a body notified by the State Government" inserted in the said Section?

(a) Lengthy arguments have been advanced on the validity of notification dated 16/08/2008, which has been issued under sub-section (1) of Section 98-A of the Act notifying “lease holders of mines and quarries situated in forest area". Succinctly stated, the contention of the petitioners is that, the said notification is contrary to Section 98-A of the Act as lease holders of mines and quarries do not come under any of the three categories of entities mentioned in sub-section (1) of Section 98-A involved in disposal of forest produce. Per contra, the contention of the State is that lease holders of mines and quarries situated in forest area come within the expression, "a body notified by the State Government".

-: 246 :-

(b) In Kesoram Industries Ltd at paragraph - 106, the Hon’ble Supreme Court has laid down the Principles governing the taxation provision/statute as under:-

“106. The judicial opinion of binding authority flowing from several pronouncements of this Court has settled these principles; (i) in interpreting a taxing statute, equitable considerations are entirely out of place. Taxing statutes cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject. There is nothing unjust in the taxpayer escaping if the letter of the law fails to catch him on account of the Legislature's failure to express itself

-: 247 :-

clearly. (See, Justice G.P. Singh, ibid, pp.638- 39).”

(c) In order to examine the aforesaid contentions, it is necessary to interpret sub-section (1) of Section 98-A. It begins with a non-obstante clause. The levy of FDT at the time of disposal of forest produce by sale or otherwise is relatable to these different entities namely, (i) State Government or, (ii) by a Corporation, owned or controlled by the State Government or, (iii) a body notified by the State Government. The expression "State Government” does not require any explanation as such and the plain words are sufficient to give a definite meaning that it is a body, which has a legal persona. As far as the expression “corporation, owned or controlled by the State Government” is concerned, in Pradeepkumar Biswaas, a Constitution Bench of Seven Judges Hon’ble Supreme Court had occasion to consider the same with regard to Council for Scientific and Industrial Research (CSIR), being an authority within the meaning of Article 12 of the Constitution. In Sabhajit Tewary v. Union of India and

-: 248 :-

others [AIR 1975 SCC 1329], it was held that CSIR was not an authority within the meaning of Article 12 of the Constitution. In Praadeepkumar Biswaas, the correctness of that decision was considered by a larger Bench of seven Judges and after referring to various judgments, it was held that when a body is financially, functionally and administratively dominated or under the control of the Government and when such control is pervasive and not merely regulatory, whether under the statute or otherwise, it would make such a body a State, under Article 12 of the Constitution. It does not matter what guise the State adopts for the constitution of the body/Corporation. Whether by a corporation established by a statute or incorporated under a law, such as the Companies Act or formed under the Societies Registration Act, 1860. The aforesaid analogy could be usefully adopted in the instant case, although, the observations of the Hon’ble Supreme Court are in the context of Article 12 of the Constitution of India. That the form of the corporation would not matter so long as a corporation is owned or controlled by the

-: 249 :-

State Government and it is involved in the disposal of forest produce by sale or otherwise, it is obliged to collect FDT.

(d) As far as “a body notified by the State Government" is concerned, the argument of Learned Addl. Advocate General is that such a body need not be State owned or controlled, it could even refer to a private body such as, individual lease holders who have been notified in the instant case. It was submitted, that body does not mean only a juristic entity, but would also include a natural person also. Thus, even if an individual lessee of a mine disposes mineral as a forest produce, by sale or otherwise, he is obliged to collect FDT and remit it to the State. Of course, petitioners’ counsel have relied upon the doctrine nositur a sociis in the interpretation of the expression "a body notified by the State Government”. Whereas, the stand of the State is that, the said doctrine is not applicable.

-: 250 :-

(e) On a conjoint consideration of the expressions, "State Government", "corporation, owned or controlled by a Government" or "a body notified by the State Government”, it becomes clear that as far as State Government or a corporation, owned or controlled by a State Government are concerned, it is not necessary to notify them by issuance of a notification for the purpose of Section 98-A of the Act. Disposal of forest produce by State Government is envisaged in Chapter XII of the Rules. The moment a corporation, owned or controlled by the State Government is constituted or established for the purpose of disposal of forest produce by way of sale or otherwise, a duty is cast on the said corporation to collect FDT on the sale consideration and remit it to the State exchequer. One such example of a corporation is, Karnataka Forest Development Corporation. But if any other body, which does not come within the expression "State Government" or "a corporation, owned or controlled by the State Government" have to be cast the duty of

-: 251 :-

collecting FDT at the time of sale of forest produce, then such a body ought to be notified by the State Government.

(f) The primary issue herein is with regard to the nature and constitution of “a body” to be notified by the State Government. Should such a body be akin to a corporation, owned or controlled by the State Government? In other words, would the above expression also not include a private body? In our view, the answer is in the affirmative. The reason being, a body to be notified by the State Government need not be owned or controlled by the State Government. Such a body can even be an autonomous or independent body or even a private body. Normally, a corporation, owned or controlled by the State Government, is a public authority, which has public or statutory duties to perform and it performs its duties and carries out its transactions for the benefit of the public and not for private profit though such an authority is not precluded from making of profit for the public benefit. But there could be a body, in the nature of a corporation, not

-: 252 :-

owned or controlled by the State Government, either established by a statute or incorporated as a company or a society, which is engaged in disposal of forest produce by sale or otherwise. Such a body could also be notified by the State Government under sub-section (1) of Section 98- A when it is involved in the disposal of forest produce by sale or otherwise. Therefore, the expression "a body notified by the state Government" is used as an omnibus clause to include all bodies, which could be notified for the purpose of collection of FDT under Section 98-A of the Act. Such a body can be completely a private body where the State does not have any control or despite the State having control over such a body in some form, whether regulatory or otherwise, it is nevertheless an autonomous or private body. Thus, the submission of the learned counsel for the petitioners that "a body notified by the State Government" must be akin to a corporation, owned or controlled by the State Government" is not accepted. For instance, if the mining lease holders, whether individual or juristic entities, constitute a federation and

-: 253 :-

through the federation, minerals as a forest produce is disposed by sale or otherwise and the State Government does not own or control such a Federation as it is a private body, such a body could also be notified by the State Government. Similarly, the leaseholders whether individual or juristic entities, could form a society or incorporate a company, through which, minerals as a forest produce could be sold. In such an event, the society or the company established by the leaseholders could be notified by the State Government and when such a company or society are formed inter alia, to dispose minerals as a forest produce, they have a duty to collect FDT and remit it to the State Government.

(g) But in the instant case, the notification uses the expression "leaseholder of mines and quarries situated in the forest area" as “a body” notified for the purpose of sub-section (1) of Section 98-A of the Act. In our view, a lease holder of mines and quarries, whether as an individual or as a juristic entity, cannot by any stretch of

-: 254 :-

imagination, constitute "a body", within the meaning of that section. Leaseholders could be individuals, partnership firms, societies, co-operative societies, companies incorporated under the Companies Act or any other association or persons. Unless all of them constitute themselves into "a body", which would inevitably be a juristic entity having a legal persona, such as, a federation in which the leaseholders are members or, a company, wherein they are shareholders or, a society, wherein they are members and one of the activities of the federation or company or society is disposal of minerals as forest produce by sale or otherwise, only such a body could be notified by the State Government. But independent or separate lease holders, whether they are private individuals or partnership firms or companies or any other juristic entity, cannot be construed to come within the expression "a body" under sub-section (1) of Section 98-A of the Act. If collectively they come together and form a body, whether, it is in the nature of a corporation or a society or company, then, they would constitute “a body”

-: 255 :-

and it is only when such body is notified by the State Government, it has to collect FDT at the time of disposal of minerals as a forest produce by sale or otherwise.

(h) Then the further question would arise, what is the precise meaning to be given to the expression "a body". We have already held that the expression could also include an autonomous or private body in which the State Government does not have any control in any manner whatsoever. Having regard to the context in which the expression is used, in our view, it is not appropriate to simply give a plain and natural meaning to it. The expression cannot be construed literally or given a natural and grammatical meaning, but a legal sense of the word must be construed having regard to the context in which it is used in Section 98-A of the Act. Thus, we have to give a contextual interpretation to the word.

(i) In this regard, learned Addl. Advocate General referred to Merriam's Webster Dictionary to contend that, the expression "a body” includes a natural person; a

-: 256 :-

human being. But that Dictionary itself states that it is a colloquial expression. The same Dictionary refers to “a body” to mean, a collective mass; a number of individuals regarded as unit, as the body of mankind. Body in law: a corporation; a number of men united by a common tie; by one form of Government; or by occupation; something regarded as a person; as Legislature body; the body of the clergy; body corporate; body politic. In other words, there is a collectiveness, assemblage, collection, association, organization. Also, reference could be made to the meaning given to the expression "body" in Black's Law Dictionary – Ninth Edition, which reads as under:

"body.(15c)1. The main part of a written instrument, such as the central part of a statute (after the title and preamble) or the middle part of a complainant's bill in equity. 2. A collection of laws.- Also termed body of laws. See CORPUS JURIS. 3. An artificial person created by a legal authority.

See CORPORATION. 4. An aggregate of individuals or groups.

See BODY POLITIC. 5. A

-: 257 :-

deliberative assembly <legislative body>. See deliberative assembly under ASSEMBLY. 6. An aggregate of individuals or groups <student body>. 7. BODY OF A CLAIM." (emphasis supplied)

Even in the case of a juristic entity, such as a partnership firm or a company or a corporation there has to be an aggregate of such juristic bodies. Thus, a conglomeration of individuals grouped together or juristic persons coming together to form a new legal entity in whatever manner it is formed, would come within the scope of the expression “a body”, within the meaning of sub-section (1) of Section 98-A of the Act. Such a body i.e., an aggregate of persons, whether natural or juristic, created as a legal entity and having a legal persona could be notified as “a body” by the State Government for the purpose of Section 98-A of the Act. It is only when they come together as an aggregate body or as a collective and form a body, such as a federation or corporation, a company or a society or an association of persons by

-: 258 :-

whatever name they may be called as a legal entity, which can be jurisprudentially recognized as "a body" within the meaning of Section 98-A of the Act. Thus, “a body” in Section 98-A of the Act, must be a legal person in the aforesaid sense, involved in sale of forest produce.

(j) Since, we are holding that “a body” in Section 98-A must be a legal person, it would be useful to delineate on this concept with reference to Salmond on Jurisprudence by P.J.Fitzgerald. According to the learned jurist, a legal person is, any subject-matter other than a human being, to which law attributes personality. The law, in creating legal persons, always does so by personifying the real thing. The thing personified may be termed the corpus of the legal person. So created, it is the body into which the law infuses the animus of a fictitious personality. Legal personality is a definite legal conception. But legal personality is not reached until the law recognizes, over and above the associated individuals, a single entity which in a manner represents them, but the same is not identical

-: 259 :-

with them. There are several distinct varieties of legal personality but having regard to the context to which the expression "body" is used in sub-section (1) of Section 98-A, a reference could be made to three such bodies by way of illustration. The first class of legal persons consists of corporations, which are constituted by the personification of groups or series of individuals. The individuals who thus form corpus of the local person are termed its members. The second class is that in which the corpus, or object selected for personification, is not a group or series of persons, but an institution. Resemblance to such persona are a university, or a church or a hospital or a library as a person. Thus, when we refer to a University as a persona, it includes an incorporated aggregate of human beings namely, the chancellor, vice chancellor, teaching faculty, graduates etc. The third kind of legal person is that in which the corpus is, some fund or estate, devoted to special uses such as a trust, estate, a charitable fund, or the property of a dead man or of a bankrupt. In this case, law personifies not the fund or

-: 260 :-

estate but the body of persons who administer it. Thus, the choice of the corpus into which the law shall breathe the breath of legal personality is a matter of form rather than of substance, of lucid and compendious expression rather than of legal principle.

(k) Thus, the expression “body” used in sub-section (1) 98-A of the Act must relate to a legal person and not to a natural person. The expression corporation means that it is a legal person and not a natural person. The State Government is also nothing but a legal persona. So also, a corporation, owned or controlled by a State. Thus, a body notified by the State Government must also have a common feature inherent in it namely, it is distinct from a natural person. All the aforesaid legal persons have distinct jurisprudential characteristics, but they are totally distinguishable from natural persons or human beings. Thus, individual persons or natural persons can never come within the fold of the expression “a body”. As far as juristic entities are concerned, we have held that the

-: 261 :-

expression “a body” would not include individual or independent juristic entities, who are lease holders or quarry holders. It is only when lease holders, whether natural persons or juristic entities conglomerate as a single entity and form a body, which is obviously, a new juristic entity, in whatever manner they may be formed, and they are involved in sale of minerals as a forest produce as such a body could be notified by the State Government under Section 98(1) of the Act. It is in the above context that petitioners’ counsel have submitted that while construing the expression “body” in Section 98-A of the Act, the rules of construction namely, noscitur a sociis and ejusdem generis must be applied. Reliance has been placed on certain judicial precedents in this regard, which could be adverted to at this stage.

(l) Thus, in the matter of construction of general words such as “a body” found in sub-section (1) of Section 98-A of the Act, we could rely on what has been stated by Justice G.P.Singh in his celebrated work, “Principles of

-: 262 :-

Statutory Interpretation.” 13th Edition. The cardinal rule is that general words in the statute must be given a general construction, unless there is something in the Act itself, such as subject matter with which the Act is dealing or context in which such words are used, to show the intention of the Legislature, that they must be given a restricted meaning. Thus words of general import must be given plain and ordinary meaning and then to see whether the context or principle of construction requires that some qualified meaning should be placed on those words. It is, however, quite often that the object or subject matter or the collocation or speaking briefly, the context has the effect of restricting the normal wide meaning of general words. According to Kapoor J., in Empress Mills, Nagpur vs. Municipal Committee, Wardha [AIR 1958 SC 341, P.348], “general words and phrases, however wide and comprehensive they may be in their literal sense must usually be construed as being limited to the actual object”. According to Privy Council “one of the safest guides to the construction of the sweeping general words

-: 263 :-

which it is difficult to apply in their full literal sense is, to examine other words of like import in the same instrument and to see what limitations can be placed on them”. General words also receive a restricted meaning because of principle of legality as also when used in association with other words by application of the rules of noscitur a sociis and ejusdem generis. Simply put the former means, the meaning of a word is to be judged by the company it keeps. It is a rule wider than the rule of ejusdem generis, rather, the latter rule is, only an application of the former. It has been explained as follows: “Where two or more words susceptible of analogous meaning are clubbed together, they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general” - Maxwell on “Interpretation of Statues”, 12th Edition Page 321.

-: 264 :-

In the case of State of Bombay vs. Hospital Mazdoor Sabha [AIR 1960 SC 610], it has been observed that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with. By way of caution it is noted that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of legislature in associating wider words with words narrower, is doubtful, or otherwise not clear that the said rule of construction can be usefully applied. Further, the rule cannot be used to make one of the associated words wholly redundant. Thus, while we have given a wide meaning to the word ‘a body’ to also include private bodies, yet the expression must take its colour from the other words used in the sub-section.

(m) Learned counsel at the Bar have cited several decisions which would be adverted to at this stage:

-: 265 :-

(i) In M.K.Ranganathan and another vs. Govt. of Madras and others [AIR 1955 SC 604], by applying the rule of noscitur a sociis, it was held that the words “any sale held without leave of the Court of any properties” have been used in juxtaposition with ‘any attachment, distress or execution put in force without leave of the Court against the estate or effects.” It would be a legitimate construction to be put upon them that they refer only to sales held through the intervention of the Court and not one effected by the secured creditor outside the winding up and without the intervention of the Court under Section 232(1) of the Companies Act, 1948.

(ii) In M/s.Parakh Foods Ltd. v. State of A.P [AIR 2008 SC 2012], the expression “such other” used in Rule 37-D of prevention of Food Adulteration Rules, 1955 came up for consideration and it was held that the said expression had to be read with the subject matter in which they had been used. The expression “such other” was in the nature of a residuary clause of the rule and had to be

-: 266 :-

read in light of the ten prohibited expressions preceding that class. Then, it would become clear that what was prohibited were only those expressions which were exaggeration of the quality of the product that is, ten prohibited expressions used in Rule 37(D) with regard to the labeling of the product which would tend to exaggerate the quality of the product.

(iii) Sri Ganesh, learned Senior Counsel, has relied on the decision in the case of M K Ranganathan. He has also relied upon the decision of the Hon’ble Supreme Court in the case of Godfrey Philips India Ltd. vs. State of Utter Pradesh [(2005) 2 SCC 515]. In that case, what came up for consideration was Entry 62 of List II, which relates to the exclusive power of the State Legislature to make laws with reference to the ‘taxes on luxuries, including taxes on entertainments, amusements, betting and gambling’. Quoting Maxwell on “Interpretation of Statutes”, with regard to the effect of words, and particularly general words, it was held that they cannot be

-: 267 :-

read in isolation; their colour and content are derived from their context. It was observed that where two or more words susceptible of analogous meaning are clubbed together, they are understood to be used in their cognate sense. It was held that the meaning of ‘luxury’ must be understood in a sense analogous to that of the less general words, such as entertainments, amusements, gambling and betting, which are clubbed with it. Thus, the principle of noscitur a sociis as approved in the case of Rainbow Steels Ltd. vs. CST [(1981) 2 SCC 141] (Rainbow Steels Limited) was applied in the matter.

(iv) In Rainbow Steels Ltd., the expression ‘old’ occurring in Entry 15 of schedule to the notification dated May 30, 1975, issued under the provisions of the Uttar Pradesh Sales Tax Act, 1948 came for interpretation. The said entry 15 reads as follows:

“Old, discarded, unserviceable or obsolete machinery, stores or vehicles, including waste products, except cinder, coal

-: 268 :-

ash and such items as are included in any other notification issued under the Act.”

Applying the principles of noscitur a sociis, it was held that the expression ‘old’ occurring in Entry 15 must be given a restricted meaning, in a sense analogous to that of the less general words clubbed with it.

(v) When particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified vide K.K.Kochuni vs. State of Madras and Kerala [AIR 1960 SC 1080]. The rule which is known as rule of ejusdem generis applies when; (i) the statute contains an enumeration of specified words; ii) the subject of the enumeration constitute a class or category; iii) that class or category is not exhausted by the enumeration ; iv) the general terms follow the enumeration; v) there is no indication of different legislative intent.

-: 269 :-

(vi) In Amarchandra Chakraborty vs. Collector of Excise, Government of Tripura, AIR 1972 SC 1863, it is noted that for application of the ejusdem generis rule or a noscitur a sociis, the general words must constitute a category or genus or a family which admits a number of species or members. In other words, there must be a distinct genus which must comprise more than one species. For instance while interpreting the words “salary or income”, the word income need not be construed ejusdem generis. The preceding word “salary” signifies only one species and does not constitute a genus. Also the preceding words do not constitute mere specifications of genus to constitute a description of genus. The rule of ejusdem generis has no application in such a case.

(vii) In Commissioner of Income Tax, Udaipur, Rajasthan vs. Macdowell and Company Limited, [(2009) 10 SCC 755], it was held that when particular words pertaining to a class, category or genus are followed

-: 270 :-

by general words, the general words are construed as limited to the things of the same kind as those specified.

(viii) In Union of India vs. Alok Kumar [2010 (5) SCC 349], it has been held that it would be more appropriate to understand an expression and give it meaning, which should be in conformity with the context and purpose in which it has been used.

(ix) In Maharashtra University of Health Sciences vs. Satchikitsa Prasarak Mandal & Ors. [AIR 2010 SC 1325], it was held that when there is a different legislative intention, the principle of ejusdem generis cannot be applied to make a part of the definition completely redundant. It was held that the definition of “teacher” in Section 2(35) of the Maharashtra University of Health Sciences Act, was wide enough to include “unapproved teacher”. The definition had two parts, the first part, dealing with full time approved Demonstrators, Tutors, Assistant Lecturers, Lecturers etc., and the second part, dealing with other persons teaching or giving

-: 271 :-

instructions on full time basis in affiliate colleges or approved institutions in the Universities.

(x) Learned Additional Advocate General has also during the course of submission pointed out that the rule of ejusdem generis must be applied with care and caution and only where the provision requires a restricted meaning to be attached to the words of general import, other wise words must be given their full play and not the real meaning. Learned Additional Advocate General has relied upon the following decisions in support of his contentions that the expression “body” has to be given its full meaning and cannot be restricted to the context of the words in which it is found.

(xi) In Jage Ram vs. State Of Haryana [(1971) 1 SCC 671 = AIR 1971 SC 1033], Section 17 of the Land Acquisition Act, 1894, (LA Act) came up for consideration. Sub-section (2) of Section 17 of the LA Act comprises of clauses (a), (b) and (c). It was held that there was no basis for holding that the general words in

-: 272 :-

clause (c) follow particular or specific words in clauses (a) and (b) or, specific words contained in clauses (a) and (b) constitute a category, class or genus.

(xii) In the case of M/s.Rohit Pulp and Paper Mills Ltd. vs. Collector Of Central Excise, Baroda [(1990) 3 SCC 447 = AIR 1991 SC 754], the point for consideration was, whether “art paper and chromo paper” manufactured from unconventional raw materials were entitled to concessional rate of tax prescribed by the Notification No.25/1984. Those two types of papers fell under category ‘printing and writing paper’ and those two articles also fell under the description ‘coated paper’ used in the second proviso to the notification. It was held that the only reasonable way of interpreting the expression ‘coated paper’ was in a narrower sense consistent with the other expressions used in the second proviso to the notification. Thus, “coated paper” was held to refer only to coated paper used for industrial purposes and not to coated varieties of printing and writing paper, was the

-: 273 :-

opinion of the Hon’ble Supreme Court. In that decision, it was also held that maxims and precedents are not to be mechanically applied; they are of assistance only in so far as they furnish guidance by compendiously summing up principles based on rules of common sense and logic.

(xiii) In the case of Grasim Industries Ltd vs. Collector Of Customs, Bombay [(2002) 4 SCC 297], it was held that the rule of ejusdem generis is applicable when particular words pertaining to a class, category or genus are followed by general words and in such a case, the general words are construed as limited to things of the same kind as those specified. It was further held that the rule restricts an attempt to reconcile incompatibility between the specific and general words in view of the other rules of interpretation that all words in a statute are given effect if possible; that a statute is to be construed as a whole and that no words in a statute are presumed to be superfluous. It was further held that for invoking the application of the ejusdem generis rule, there must be a

-: 274 :-

distinct genus or category and the specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where that is lacking, the rule cannot be applied, but the mention of a single species does not constitute a genus.

(n) Applying the aforesaid principles to the present case, it is noted that sub-section (1) of Section 98-A of the Act speaks of three different types of legal entities viz., (a) State Government; (b) a Corporation, owned or controlled by the State Government; and (c) a body, notified by the State Government. It has already been explained that the expression “body” must relate to a legal persona and does not take within its meaning a natural person or a human being. This can be further illustrated by the fact that the Section does not use the expression ‘any body’ nor the expression ‘any person’. If it had used either of the said expressions, then, possibly, a ‘human being’ or a ‘natural person’ could also have been included within the scope of

-: 275 :-

the Section. It has also been held that the expression “a body” used in the sub-section can also take within its fold even a private body.

(o) In Black’s Law dictionary, 9th edition, the meaning of ‘person’ is given as ‘a human being and also termed as ‘a natural person’. The expression artificial person is also given under the meaning of the word ‘person’ as an entity such as, a corporation, created by law and given certain legal rights and duties of a human being, being a real or imaginary, who, for the purpose of legal reasoning, is treated more or less a human being. Also termed fictitious person; juristic person; juridical person; legal person; moral person; or a legal entity.

Reliance was also placed on P Ramanath Aiyar’s “The Law Lexicon” with regard to the expression “body”, which, inter alia, means in the following terms: “Body – The main portion, the bulk of anything, the larger part, the majority, as the body of the people are opposed to the

-: 276 :-

measure. A number of individuals spoken collectively, usually associated for a common purpose, jointed in a certain cause or united by some common tie or occupation; as a legislative body, the body of the clergy; a body corporate. A number of things or particulars taken together a general collection, a code, a system, as, a body of laws.

(p) A careful consideration of the case law stated at the Bar and also from the jurisprudential angle, it is held that the expression “body” in sub-section (1) of Section 98-A of the Act means a legal persona in whatever form or

-: 277 :-

manner it may have been brought into existence or established. It, definitely, does not apply to a natural person or human being. Also the expression “body” is distinct from the expressions ‘any person’ and ‘any body’. The expression “a body” can only refer to “a legal persona”, as has been discussed supra, and cannot include ‘lease-holders of mines and quarries’ as a class of persons. Therefore, we answer the point No.2, holding that “lease holders of mines and quarries in forest areas,” do not come within the meaning of “a body” and cannot be brought under the operation of Sections 98-A and 98-B of the Act. When they dispose of minerals as a forest produce, they are not liable to collect FDT from the purchasers and remit the same to the State Government. Therefore, the impugned notification dated August 16, 2008 is ultra vires sub-section (1) of Section 98-A of the Act and is liable to be quashed qua lease holders of mines and quarries in forest areas.

-: 278 :-

(q) However, at this stage, it is necessary to issue a caveat. Some of the petitioners as traders, have purchased minerals as forest produce from a corporation, owned or controlled by the State Government such as Mysore Mineral Limited (for short ‘MML’) or the State Government directly as the case may be. In respect of such transactions, Section 98-A of the Act would apply to such petitioners. Such purchases are not affected by the impugned notification, and therefore the quashing of the said notification is inconsequential, as far as those petitioners are concerned. Thus, when sub-section (1) of Section 98-A of the Act refers to disposal of forest produce by the State Government or a corporation, owned or controlled by the State Government, in such an event, FDT is leviable. Therefore, as far as such of those purchasers are concerned who have purchased forest produce from State Government directly or MML or any other Corporation, owned and controlled by the State Government, FDT is leviable and they are bound to pay the tax.

-: 279 :-

(r) But one other argument made in this regard by Sri D.L.N.Rao, learned Senior Counsel, was that the petitioners who are purchasers of iron ore from MML which is a lessee of vast tracts of lands in the State, engaged in extracting iron ore and other minerals though, a Corporation, owned or controlled by the State Government also cannot be brought under Section 98-A of the Act. MML may be a lessee, but we have already noted that the impugned notification does not affect MML. As MML, which is a corporation, owned or controlled by the State Government, any disposal of minerals as a forest produce by the said corporation would result in collection of FDT by it from the purchasers. It is of no relevance as to whether MML is selling mineral as a forest produce as a lessee, or as a trader. It does not make any difference. As MML is a corporation, owned or controlled by the State Government and is involved in disposal of minerals as a forest produce by sale or otherwise, a duty is cast on it to levy FDT on the purchasers of such forest produce and on collection of the same, it must remit the amount to the

-: 280 :-

State Government. Therefore, the impugned notification does not affect those petitioners who are purchasers of forest produce from State Government, MML or any other corporation, owned or controlled by the State Government. They are liable to pay FDT as they have purchased mineral as a forest produce from a corporation, owned or controlled by the State Government. Therefore, the petitioners, who have purchased mineral as a forest produce from MML or any other corporation, owned or controlled by the State Government must pay FDT. Such corporation do not require to be notified as the section clearly stipulates that they have to collect FDT when they dispose of minerals as a forest produce by sale or otherwise.

Of course, in this regard, another argument advanced by Sri D.L.N.Rao and Sri Raghavacharyulu, learned Senior Counsel, was to the effect that the State Government has no legal competence to levy FDT and the petitioners who are purchasers of minerals as a forest

-: 281 :-

produce should succeed on that ground. That aspect shall be considered later as point Nos. (v) and (vi).

Point No. (ii) is answered accordingly.

(13) Re: Point No. (iii):

Whether FDT is a tax leviable within the scope of Entry 54 List II and not a fee, within the scope of Entry 47 of List III?

(a) This point should not take us long to answer, as a Division Bench of this court in the case of Gurusiddappa has already held that levy of tax on purchase price of forest produce disposed of by sale or otherwise by the State Government, whatever be the method of sale, is within the legislative competence of the State under Entry 54 of List II and is constitutionally valid. This position is also accepted by the petitioners, who have been represented by Sri Ganesh and Sri Udaya Holla, learned senior counsel. Of course, the said case was decided by the Division Bench prior to the amendment

-: 282 :-

made to sub-section (1) of Section 98-A of the Act, by which the words ‘or by a corporation, owned or controlled by or a body notified by the State Government’ was incorporated. But, the insertion of the aforesaid words by the amendment makes no difference to validity of the levy of FDT vis-à-vis the legislative competence of the State Legislature.

(b) In the case of Gurusiddappa various contentions were raised to assail the validity of Section 98- A of the Act and imposition of FDT. The Division Bench categorically held that levy of FDT under Section 98-A of the Act, sought to be recovered from the purchasers, is on the purchase amount paid by the purchasers to the government, the taxing event being the sale of forest produce. Consequently, the levy was covered by Entry 54 of List II. The Division Bench also noted that Section 98- A of the Act indicates that the tax imposed by it is on the consideration for which the forest produce is disposed of by the State Government, not only by sale, but also by

-: 283 :-

adopting other method, other than sale. But, the State Government, in the said case, suggested that the imposition of tax on the disposal of forest produce was only by sale, i.e. either by direct sale by the forest department in its depots or by resorting to other methods such as, auction, tender-cum-auction and issue of licence for the purchase of forest produce and at the sanctioned seigniorage rates and the word ‘sale’ was intended to mean direct sale and the word ‘otherwise’ was intended to cover the sale by those other methods of disposal, which are also sales and that it was used to avoid any argument that anyone of those methods was not a sale. It was, thus, held that the sale of forest produce by tender-cum- auction and by any other method suggested in Chapter XII in Rule 85 of the Rules also came within the ambit of expression ‘sale or otherwise’. In the result, it was held that Section 98-A of the Act, which imposes tax on the purchase price of forest produce disposed of by sale by the State Government, whatever be the method of sale, is within the legislative competence of the State Legislature

-: 284 :-

under Entry 54 of List II and is constitutionally valid. However, the Division Bench has not expressed any opinion on the question of validity of the Section, if it is used to levy tax on transaction other than ‘sale’.

(c) The contention of the petitioners in the said case that Section 98-A of the Act was invalid, as it suffers from the vice of double taxation, was also rejected by the Division Bench, holding that the extent of power of the Legislature to make laws, including the imposition of tax and restrictions or limitations on the exercise of such legislative power, are to be found in the Constitution itself. The Division Bench further held that there is no provision in the Constitution which prohibits the Legislature from levying tax on the same event and the same person more than once. (d) It was also held that it was not possible to accede to the contentions urged by the petitioners therein that levy under Section 98-A of the Act is in the nature of fee. It was further held that the levy under the Section

-: 285 :-

was not intended to cover the expenses for rendering any service to any person or class of persons from whom the amount is collected. Similarly, the levy is not in the nature of compensatory tax. Thus, it was observed by the Division Bench that the levy under Section 98-A of the Act was a compulsory exaction of money for public purpose and answered the description of tax and that it is neither compensatory nor regulatory in nature and definitely not a fee. The Division Bench also held that the levy under Section 98-A of the Act was neither on manufacture nor production of goods, but is a levy on sale or purchase of goods. It was further held that both excise duty as also sales tax being indirect taxes, which a manufacturer and a seller or merely a seller, as the case may be, could pass on to the buyers, the Parliament is competent to impose the former and the State Legislature the latter and this power is only subject to other provisions of the Constitution. The judgment of the Division Bench in Gurusiddappa, is binding on this Court as it has attained finality.

-: 286 :-

(e) In this regard, one contention raised by Sri K G Raghavan, learned Senior Counsel, appearing for some of the writ petitioners, was that Section 98-A of the Act is invalid, as it does not encompass within it different ingredients of a taxing provision. In this regard, reliance was placed on the decision of the Hon’ble Supreme Court in the case of Commissioner, Central Excise & Customs, Kerala vs. Larsen & Toubro Ltd. [2015 SCC Online SC 738 = 2015 AIR SCW 4869] (Larsen & Toubro Ltd.). This contention is without any substance. In Gurusiddappa, It was held that sub-section (1) of Section 98-A of the Act not only imposes a tax, but also quantifies it at 8% on the amount paid for by the purchase of forest produce and therefore it covers the two essential aspects of a taxing provision viz., levy and assessment. Sub-section (2) of Section 98-A of the Act provides that the said tax shall be collected along with such consideration, which means the authority competent to collect the consideration for the sale of forest produce is also the authority empowered to collect the tax at the rate

-: 287 :-

prescribed under sub-section (1) of Section 98-A of the Act. Rule 102, framed under the Act, prescribes the category of officers who can exercise the power regarding sale of forest produce, by specifying the officers by designation and also the extent of their powers to effect the sale by specifying the maximum amount of consideration up to which each of the category of officers has the power to effect the sale of forest produce. Of course, Rule 102 is relatable only to sale of forest produce by the State Government. But the fact that there is no rule to the effect as to which officer would collect tax, if the sale is made by a corporation, owned or controlled by the State Government or a body notified by the State Government, would not imply that the Section is invalid, on the premise it does have all the ingredients of a taxing provision as noted in the aforesaid decision.

(f) In Larsen & Toubro Ltd., it was held that a taxation statute should clearly and unambiguously convey the three components of the tax law i.e. i) the subject of

-: 288 :-

the tax, ii) the person who is liable to pay the tax; and iii) the rate at which the tax is to be paid. It was held that if there is any ambiguity regarding any of these ingredients in a taxation statute, then, there is no tax in law and in such a case, it is for the Legislature to do the needful in the matter. Referring to the decision of the Supreme Court in the case of Govind Saran Ganga Saran vs. CST [1985 Supp. SCC 205], it was further held that the aforesaid components viz., i) the character of the imposition known by its nature which prescribes the taxable event attracting the levy; ii) a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax; (iii) the rate at which the tax is imposed and iv) the measure or value to which the rate will be applied for computing the tax liability are essential to the levy of any impost.

(g) In the instant case, Section 98-A of the Act is in the nature of a charging section. The taxing event is the disposal of forest produce by sale or otherwise; the

-: 289 :-

person who is liable to pay the tax is the purchaser of the forest produce along with the sale consideration; at the rate of 8% on the amount of consideration paid by the purchaser of forest produce the tax has to be paid. Thus, all the essential ingredients of a taxing provision are present in Section 98-A of the Act. Therefore, there is no merit in the contention that Section 98-A of the Act is invalid and does not fulfill the conditions of taxation provision. In fact, by virtue of the amendment, incorporating the words ‘by a corporation, owned or controlled by the State Government’, the Section aims to enlarge the scope of collection of FDT and thus FDT is to be collected not only when the State Government disposes a forest produce by sale or otherwise but even when a corporation, owned or controlled by the State Government, or when a body notified by the State Government has to collect the FDT, the Section is applicable. Of course, in the present case, detailed discussion has been made on the expression ‘a body notified by the State Government’ which need not be reiterated here again, but it is held that

-: 290 :-

if a body to be notified by the State Government is validly notified, then, such a body has also to collect FDT at the time of disposal of forest produce. it is also reiterated that such a body could be a private body, but it, definitely, does not include individuals or description as has been notified in the impugned notification dated August 16/08/2008 namely, ‘lease holders of mines and quarries’ situated in a forest area.

(h) Thus, the justification sought to be made by the learned Advocate General to the effect that FDT is in the nature of a fee, which could be imposed having regard to Entry 47 of List III and it is not a tax, is made without reference to the decision in Gurusiddappa decided by a Division Bench of this court, which is binding on this court. Hence, the submission of the learned Advocate General in this regard is not accepted. The levy is in the nature of a sales tax coming within the scope of Entry 54 of List II.

Point No. (iii) is answered accordingly.

-: 291 :-

Before parting with this point, it is relevant to consider an argument made by Sri Raghavacharyulu, which concerns validity of the definition of “forest produce”. According to him, the definition of forest produce in Section 2(7) of the Act, mainly concerns organic produce and therefore, inorganic produce such as, minerals, as stated in Section 2(7)(b)(iv) cannot be incorporated within the said definition. Elaborating the said submission, it was contended that essentially, forest refers to vegetation, flora and fauna, which are found above the earth’s surface and therefore, minerals which are below the earth surface cannot be a forest produce. He therefore contended that there can be no levy of FDT on minerals as a forest produce. While considering this argument, it is relevant to note that the definition forest produce in Section 2(7) of the Act is almost in pari materia with the definition in Indian Forest Act, 1927. In the latter Act also, minerals are included within the definition of forest produce. In fact, under the Act, previous to Indian

-: 292 :-

Forest Act, 1927 i.e., the Indian Forest Act, 1878, “forest produce” was defined as under:- “Forest-produce includes the following when found in, or brought from, a forest, that is to say, - Minerals (including limestone and laterite), surface-soil, trees, timber, grass, peat, canes, creepers, reeds, leaves, moss, flowers, fruits, roots, juice, catechu, bark, honey, wax, lac, caoutchouc, gum, wood-oil, grass-oil, resin, varnish, silk-worms and cocoons, shells, skins, tusks, bones and horns:”

The above definition also included minerals as a ‘forest produce’.

Indian Forest Act, 1927 is a Pre-Constitution statute, which was applicable throughout British India, including some parts of Karnataka State, which was a part of British India. After the re-organization of Karnataka State, Karnataka Forest Act, 1963 has been passed in order to have a common law throughout the State, which is an

-: 293 :-

integration of different parts. NMDC, which has taken up this contention is a public sector unit of the Central Government and is bound by the Indian Forest Act, 1927 but in the State of Karnataka, NMDC is bound by the Karnataka Forest Act, 1963, which has received the assent of the President. Although, when it was enacted, the subject “Forests” was in List II and not in list III.

That apart, the definition of “tax on sale or purchase of goods” has been amended by virtue of the 46th Amendment to the Constitution. “Goods” is defined in Clause 12 of Article 366 of the Constitution, to include all materials, commodities and articles. There can be no dispute that, minerals when sold is goods. The definition of “goods” in the Constitution is an inclusive of definition and not an exhaustive one. Therefore, for the purpose of imposition of sales tax on forest produce, there is no impediment for including minerals in the said definition. When there is a transaction of sale of minerals, it is transfer of property in goods and therefore, liable for

-: 294 :-

payment of sales tax as well as FDT. Therefore, we do not find any illegality in the inclusion of minerals as forest produce for the purpose of imposition of sales tax in Entry 54 of List II.

(i) Having held that FDT is in the nature of sale tax coming within the scope of Entry 54 of List II, a related issue would arise with reference to Article 286 of the Constitution of India, which is the next issue to be considered. (14) Re: Point No.(iv):

Whether FDT could be levied in the nature of a sales tax on minerals as forest produce when the same are exported or sold in the course of inter-state trade? In other words, whether the levy of FDT is hit by Article 286 of the Constitution?

(a) The power to levy sales tax even prior to the commencement of the Constitution of India was on the provincial Legislatures vide Entry 48 of List II to the Government of India Act, 1935. After the commencement

-: 295 :-

of the Constitution of India, the power to impose sale tax is relatable to Entry 54 of List II as a State subject. Entry 54 reads as under:

“Taxes on the sale of purchase of goods other than newspapers, subject to the provisions of Entry 92-A of List I”.

(b) Article 286 of the Constitution imposes a two- fold restriction as to imposition of tax on the sale or purchase of goods. Firstly, sales made outside the State or inter-state sale, cannot be subjected to State sales tax. Secondly, sales made in the course of import of goods into or export of goods outside the territory of India, also do not come within the purview of State’s competence to levy sales tax.

(c) By virtue of 46th Amendment made to the Constitution, Article 366 of the Constitution was amended to incorporate clauses (a) to (f) to sub-article 29A of Article 366 of the Constitution of India. Placing reliance on that provision, various States imposed taxes on inter-state

-: 296 :-

sales or sales made outside the State. The said issue came up for consideration before the Hon’ble Supreme Court in the case of Builders’ Association Of India vs. Union Of India [(1989) 2 SCC 645], wherein it was held that Article 366 of the Constitution of India was a definition clause. The amendment made to the definition clause by incorporating what is called ‘deemed sales’ within the nomenclature of ‘sale of goods’ was also subject to Article 286 of the Constitution. It was held that the two-fold restriction in Article 286 of the Constitution was applicable to all kinds of sales for which the sales tax was leviable by the State Governments including deemed sales.

(d) Placing reliance on the aforesaid decision, Sri.Ganesh, Sri.D.L.N.Rao and Sri.Udaya Holla, learned senior counsel, contended that such of the lease holders, assuming for the sake of argument that they have to collect FDT and remit it to the State Government, who are involved in export sales, need not collect FDT from the purchasers of minerals as forest produce and that the

-: 297 :-

notification dated August 16, 2008 being applied to such lease holders, is ultra vires Article 286 of the Constitution of India.

(e) In Shanmugha Vilas Cashewnut Factory, it has been held that sales by export and purchases by import fall within the exemption under Article 286 (1) (b) of the Constitution. Purchases in the State by the exporter for the purpose of export as well as sales in the State by the importer after the goods have crossed the customs frontier are not within the exemption. Also, sales in the State by the exporter or importer by transfer of shipping documents while the goods are beyond the customs frontier are within the exemption, assuming that the State power of taxation extends to such transactions. Also, in MMTC of India Limited, it has been held that delivering goods at a Port within the State to a foreign buyer for transportation out of India under a pre-existing contract does not amount to resale in the State rather, it would be a sale in the course of export of goods, by the Hon’ble Supreme Court while

-: 298 :-

considering Section 5 and Section 2(g) of Orissa Sales Tax Act, 1947.

(f) We find considerable force in the submission of the learned Senior Counsel and hold that Section 98-A of the Act, which deals with the levy of FDT as being in the nature of a sales tax on the sale of forest produce, is subject to Article 286 of the Constitution of India and therefore, any sale, which is in the nature of inter-state sale or during the course of an inter-state trade or export sales, cannot be subject to FDT. This is so, even when the sale of forest produce is made by the State Government or a corporation, owned or controlled by the State Government.

Point No.(iv) is answered accordingly.

(15) Re:Point No.(v):

Whether the state Legislature is denuded of its power to levy FDT on the disposal of minerals as forest produce having regard to Entry 54 of List I and

-: 299 :-

MMDR Act and the declaration made under Section 2 of the said Act. In other words, whether the general power of “regulation and control” of minerals includes the power of taxation?

(a) Sri D.L.N. Rao and Sri Raghavacharyulu, learned Senior Advocates contended that in view of the declaration made under Section 2 of the MMDR Act, the State Government is denuded of its power to levy FDT on the disposal of minerals as a forest produce having regard to Entry 54 of List I. In this regard, our attention was drawn to the provisions of the MMDR Act. Per contra, learned Advocate General referred to State of West Bengal vs. Kesoram Industries Limited [(2004) 10 SCC 201], to contend that the general power of regulation and control of mines and minerals does not include power of taxation.

(b) Before considering this contention, it is necessary to refer to Entry 54 List I once again. The same reads as under:-

-: 300 :-

“54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of Union is declared by Parliament by law to be expedient in the public interest.”

Section 2 of the MMDR Act reads as under:- “2. Declaration as to the expediency of Union control.- It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided.”

On a conjoint reading of the above, the significant words are “declared by Parliament by law” and “to the extent hereinafter provided” in Entry 54 List I and Section 2 of MMDR Act respectively. Under Entry 54 List I, the Parliament has declared that the Union should take under its control the regulation of mines and the development of minerals to the extent provided under the Act. Therefore, it is necessary to discern as to whether a tax which is in the nature of a Sales Tax namely FDT is a matter, which is

-: 301 :-

provided for under the MMDR Act. In this regard, the scheme of the MMDR Act may be considered. The object of the Act is to provide for the development and regulation of mines and minerals under the control of the Union. The Act provides for two aspects namely: development and regulation of mines and minerals. The Act deals with the following aspects namely: general restrictions on undertaking prospecting and mining operations; procedure for obtaining prospecting licences or mining leases in respect of lands in which the minerals vests in the Government; rules for regulating the grant of prospecting licences and mining leases; special powers of Central Government to undertake mining operations in certain cases; development of minerals as envisaged under Section 18 and 19 of the Act and miscellaneous provisions. Thus, provisions relating to taxation on minerals at the time of sale whether as forest produce or otherwise, are not envisaged under the Act. Section 9 of the Act deals with payment of royalty in respect of mining leases, while Section 9-A deals with payment of dead rent by the lessee.

-: 302 :-

Thus, tax or fee is not a subject dealt with under the MMDR Act at the time of sale of minerals. Thus, the general power of regulation and control would not include the power of taxation on the sale of minerals particularly, as a forest produce on a reading of the MMDR Act.

(c) A comparative table showing the differences in the scheme and enactment of MMDR Act and the Karnataka Forest Act, 1963, provided by learned Advocate General for the State is reproduced as under:-

Sl. No. Mines and Minerals (Development and Regulation) Act, 1957 Karnataka Forest Act, 1963 1. An Act to provide for the development and regulation of mines and minerals under the control of the Union An Act to consolidate and amend the law relating to forests and forest produce in the State of Karnataka 2. Provisions deal with regard to regulating mining operations, licenses and mining leases and development of minerals. Provisions of Karnataka Forest Act deal with Protection, Regulation and Management of Forests and Forest produce

-: 303 :-

in Karnataka 3. Deals exclusively with the regulation for mining of minerals irrespective of the nature of land it is found in. Has nothing to do with regulation and development of mines and minerals 4. Regulates mines and minerals under the Control of the Union and denudes the State Legislature from making any law with respect of mines and mineral development by virtue of section 2. Contains provisions regarding protection, regulation and management of forest produce in Karnataka including the proviso to levy FDT on forest produce for development of forests through raising of plantations and ancillary activities.

On a comparison of the two Acts, it is noted that their aims and objects are distinct. One is concerning the development and regulation of mines and minerals under the control of the Union, the other relates to forest and forest produce in the State. Although, minerals are considered to be a forest produce under the State Act, imposition of tax on the sale of minerals as a forest

-: 304 :-

produce does not come within the scope of the MMDR Act. Levy of sales tax or any other tax in the nature of sales tax on minerals as a forest produce at the time of sale, being relatable to Entry 54 List II, the same is outside the scope of List I.

(d) Further, learned Advocate General has placed strong reliance on the judgment of the Constitution Bench of the Hon’ble Supreme Court rendered in Kesoram to contend that the general power of “regulation and control” does not include power of taxation.

(e) But prior to referring to that decision, it is necessary to refer to a few other decisions cited by learned counsel for the petitioners.

(i) In Hingir-Rampur Coal Co. Ltd., vs. State of Orissa [AIR 1961 SC 459], (Hingir-Rampur Coal Co.) a challenge was made to the validity of the Orissa Mining Areas Development Fund Act, 1952 (Orissa Act of 27 of 1952) (State Act/Legislation). The petitioner therein

-: 305 :-

challenged the validity of the levy imposed by the said Act, wherein a payment of cess had to be made on the petitioner’s Rampur Colliery. The validity of the said Act was examined with reference to Entry 54 in List I read with Mines and Minerals (Regulation and Development) Act, 1948 (Act 53 of 1946) with reference to Entry 52 in List I read with the Industries Development and Regulation Act, 1951 (Act 65 of 1951). The levy was defended as a fee relatable to Entries 23 and 66 of List II. The scheme of the impugned Orissa Act was examined in depth and it was held that there was a definite correlation between the impugned Act and the purpose which was rendered with reference to the notified area. The scheme of the Act showed that the cess was levied against a class of persons owning mines in the notified area and to enable the State Government to render specific services to the said class by developing the notified mineral area. The interelationship of Entries 23 and 66 in List II qua Entry 54 in List I was also considered. The Hon’ble Supreme Court tested the validity of the cess with reference to two Central Acts

-: 306 :-

namely, (1) Mines and Minerals (Regulation and Development) Act, 1948 and (ii) Industries (Development and Regulation) Act 1951. The first of the aforesaid Acts was a pre-Constitution legislation, while the second one was a post–Constitution legislation. It was held that the pre-constitution legislation, ceased to apply to the impugned Act, which was a post-Constitution Act and assuming, it applied, as there was no declaration made after the commencement of the Constitution, by the Parliament, as required under in Entry 54 of List II read with Entry 54 in List I, therefore the validity of the State legislation was not impaired. However, a finding was recorded by the Hon’ble Court that the field covered by the impugned Act (State Act) was covered by the Central Act.

While considering the validity of the State Act in the context of Act 65 of 1951, under which a declaration had been made in public interest that the Union should take under its control the industries specified in the First Schedule as contemplated in Section 2 of that Act read

-: 307 :-

with Entry 52 in List I to which Entry 23 in List II is subject to, the Hon’ble Supreme Court opined that the impugned Act was relatable to Entries 23 and 66 in List II and its validity was not affected by Entries 52 and 54 of List I read with Act 65 of 1951 and Act 53 of 1948 respectively. In this case it was held that the Central Act of 1951 was attracted to Coal Industries and by applying the doctrine of pith and substance, refused to annul the levy of cess under the impugned Orissa Act based on the distinction between the Central Act of 1951 and the State legislation of 1952. It was held that the Central Act dealt with the Control of all industries including coal, whereas the State Act was with regard to the development of the mining areas notified under it. It was held that the Central Act and the State Act operated in different fields and Entries 52 and 54 in List I did not have any adverse or denuding effect on the legislative competence of the State referable to Entries 23 and 66 in List II. As a result, the challenge to the Orissa Act of 1952, was unsuccessful and the writ petitions were dismissed.

-: 308 :-

Thus, in the context of Act 53 of 1948, the Hon’ble Supreme Court held that the same being pre-Constitutional legislation and no declaration having been made subsequent to the enforcement of the Constitution i.e., prior to enactment of MMDR Act, there was no conflict between that Central Act and the impugned State Act. In fact both the Acts contained a provision with respect to levy of fees or taxes in respect of minerals, mines quarried, excavated or collected. But as far as the Act 65 of 1951 was concerned, the doctrine of pith and substance was applied to uphold the Orissa State legislation

(ii) Once again, in State of Orissa vs. M.A. Tulloch and Co., [AIR 1964 SC 1284] (M.A. Tulloch and Co.), a challenge was made to the aforesaid Orissa Act 27 of 1952, with regard to the fee levied under the Orissa Act in respect of extraction of manganese and iron ore from a mine under a lease granted under the provisions of Act 53 of 1948. In the interregnum, the MMDR Act, 1957 had come into force w.e.f. 01/06/1958. The period of

-: 309 :-

recovery related to the period prior to enforcement of MMDR Act, but the recovery was sought to be effected after the coming into force of MMDR Act, 1957.

Reiterating the findings in Hingir-Rampur Coal Co., the Constitution Bench of the Hon’ble Supreme Court held that the impugned Orissa State legislation empowered the State legislation to levy a fee being a percentage of the value of the mined ore at the pits mouth, the collection being intended for the development of the mining areas of the State. Succinctly stated, it was held that the power to legislate by State Legislature under Entry 23 of the State List II subject to Entry 54 of List I on the topic of “Mines and Mineral Development”, was plenary under the relevant provision in List I, Entry 54 or Union List, to the extent to which the Union Government had taken under its control the regulation of development of minerals, that much (i.e., to that extent) was withdrawn from the ambit of the power of State Legislature under Entry 23 of List II. According to the Hon’ble Supreme Court, this was not a case of

-: 310 :-

repugnancy but the State Legislature was denuded or deprived of legislative power once the declaration was made by Parliament which alone was empowered to legislate by virtue of the declaration. In other words, the States would lose legislative competence only “to the extent to which regulation and development under the control of the Union has been declared by Parliament to be expedient in the public interest”. The approach in the matter was explained by stating that it would be logical first to examine and analyse the State Act and determine its purpose, width and scope of the area of its operation and then consider by “what extent” the Central Act cuts into it or trenches on it. As far as MMDR Act was concerned, it was held that the said enactment covered the field of legislation as to the regulation of mines and development of minerals only.

(iii) The aforesaid dicta have been referred to, in extenso in Kesoram Industries Ltd., with reference to the provisions of the MMDR Act namely, Section 13(1) & (2) (i)

-: 311 :-

and Section 18(3) and Section 25. Section 25 of the MMDR Act specifically deals with recovery of rent, royalty, tax, fee or other sums due to the Government under that Act or the rules made thereunder or under the terms and conditions of any permit, licence or lease to be recovered in the same manner as arrears of land revenue. On the decision rendered in the case of M.A. Tulloch, three categorical observations have been made by the Hon’ble Supreme Court. Firstly, the provisions of the MMDR Act, 1957 did not come up for the scrutiny of the Constitution Bench as there was no demand raised after the commencement of the said Act. The Constitution Bench in M.A. Tulloch was only adjudicating upon the liability to pay cess incurred under the previous Act i.e., Act 53 of 1948, whether it could be enforced under the MMDR Act, 1957. Secondly, the extent to which the power to legislate by all States was excluded by Central Act 65 of 1951 was not a question dealt with in depth as it was done in Hingir- Rampur Coal Co. Thirdly, M.A.Tulloch, “if not correctly read”, would give a wrong impression that MMDR Act,

-: 312 :-

1957 provides for levy of tax and fee which, in fact, it does not. It was held that the expression “other fees and charges” in Section 13(2) (i) of MMDR Act must be assigned such meaning as to include therein only such fees and charges as

are meant for “regulation or development of mines and minerals”. It was held that the power to levy tax or fee could be spelt out from Sections 13, 18 and 25 of MMDR Act. But the power to tax cannot be implied; there must be a charging section empowering the State to levy tax, are the observations of the Hon’ble Supreme Court. It was further clarified that under Section 18(2)(q) of the MMDR Act, what was sought to be charged was a fee on applications for revision and not on minerals, mineral rights or mining land. “Also Section 25 speaks of recovery of tax and fee” amongst others. What follows is; firstly, a provision of recovery, being a machinery provision, cannot be read as empowering to levy a tax or fee. Secondly, its speaks of tax or fee being due to the Government without defining the same and without qualifying the word “Government” -

-: 313 :-

Central or State. The Hon’ble Supreme Court also held that relevant principles of law laid down in M.A.Tulloch were not inconsistent with the view taken in Kesoram. That List I contains a general entry i.e., Entry 96 for levy of fee in respect of matters in List I, but so far as levy of tax is concerned, there are separate and specific entries [Entries 82 to 92-B in List I and Entries 45 to 63 in List II]. Further, in view of Entry 50 of List II, Parliament may by law relating to mineral development limit or place limitations on the power of the State Legislatures to impose taxes on mineral rights. But in the absence of any Central Law in the matter, the State’s power is plenary.

But the power to tax must be express as there is nothing like an implied power to tax. The source of power, which does not specifically speak of taxation cannot be so interpreted by expanding that as to include by implication or by necessary inference. Eminent Jurist Seervai, was quoted by the Hon’ble Supreme Court in the following manner:

-: 314 :-

“The regulation of mines and mineral development is a subject of exclusive State legislation, but for the limitation placed upon that power by making it subject to the provisions in that behalf in List I. If Parliament does not exercise its power under Entry 54 List I, the States’ power under Entry 23 List II would remain intact. If Parliament exercised its power under Entry 54 List I, only on a part of the field, as for example, major minerals, the States’ legislative power over minor minerals would remain intact.”

More significantly, in this case it was held that there is a small difference between the “power to regulate and develop” and “power to tax”. It was held that any power exercised for the collection of a fee for the purpose of regulation must be distinct from collection of revenue by way of tax. That a regulation is a necessary concomitant of the police power of the State, which is a manifestation of the sovereign authority but a collection in the nature of a tax is quite distinct. The difference between the demand of money under the police power of the State and one

-: 315 :-

made under the power to pay the tax is one of substance and not merely a form. That Section 2 provides and indicates that the assumption of control in public interest by the Central Government is on: (i) the regulation of mines, (ii) the development of minerals (iii) to the extent hereinafter provided i.e., under the MMDR Act (Act 67 of 1957). Thus, in Kesoram, it has been categorically held that “tax and fee is not a subject dealt by Act 67 of 1957” i.e., MMDR Act. In Gurusiddappa, the Division Bench of this Court has held that the levy of FDT is to augment the revenue of the State, which is relatable to Entry 54 of List II.

(f) Referring to Synthetics and Chemicals Ltd. vs. State of U.P. [(1990) 1 SCC SC 109], it was held that even if the field is occupied by the Centre for regulation and control, power to levy tax and fee is available to the State so long as it does not interfere with the regulation-the power assumed and occupied by the Union. Reference was made to Automobile Transport

-: 316 :-

(Rajasthan) Ltd. vs. State of Rajasthan [AIR 1962 SC 1406], which arose in the context of State imposing regulatory restrictions on free trade, commerce and intercourse guaranteed under Article 301 of the Constitution. At Para 129 of the judgment, it has been summarized as under:

“129.The relevant principles culled out from the preceding discussion are summarised as under:- (1) In the scheme of the Lists in the Seventh Schedule, there exists a clear distinction between the general subjects of legislation and heads of taxation. They are separately enumerated. (2) Power of “regulation and control” is separate and distinct from the power of taxation and so are the two fields for purposes of legislation. Taxation may be capable of being comprised in the main subject of general legislative head by placing an extended construction, but that is not the rule for deciding the appropriate legislative field for

-: 317 :-

taxation between List I and List II. As the fields of taxation are to be found clearly enumerated in Lists I and II, there can be no overlapping. There may be overlapping in fact but there would be no overlapping in law. The subject- matter of two taxes by reference to the two Lists is different. Simply because the methodology or mechanism adopted for assessment and quantification is similar, the two taxes cannot be said to be overlapping. This is the distinction between the subject of a tax and the measure of a tax. (3) The nature of tax levied is different from the measure of tax. While the subject of tax is clear and well defined the amount of tax is capable of being measured in many ways for the purpose of quantification. Defining the subject of tax is a simple task; devising the measure of taxation is a far more complex exercise and therefore the Legislature has to be given much more flexibility in the latter field. The mechanism and method chosen by Legislature for quantification of tax is not decisive of the nature of tax though it may constitute one relevant factor out of many for

-: 318 :-

throwing light on determining the general character of the tax. (4) Entries 52, 53 and 54 in List I are not heads of taxation. They are general entries. Fields of taxation covered by Entries 49 and 50 in List II continue to remain with State Legislatures in spite of Union having enacted laws by reference to Entries 52, 53, 54 in List I. It is for the Union to legislate and impose limitations on the States' otherwise plenary power to levy taxes on mineral rights or taxes on lands (including mineral-bearing lands) by reference to Entries 50 and 49 in List II and lay down the limitations on the State's power, if it chooses to do so, and also to define the extent and sweep of such limitations. (5) The Entries in List I and List II must be so construed as to avoid any conflict. If there is no conflict, an occasion for deriving assistance from non obstante clause "subject to" does not arise. If there is conflict, the correct approach is to find an answer to three questions step by step as under:

-: 319 :-

One - Is it still possible to effect reconciliation between two entries so as to avoid conflict and overlapping? Two - In which entry the impugned legislation fails by finding out the pith and substance of the legislation? and Three - Having determined the field of legislation wherein the impugned legislation falls by applying the doctrine of pith and substance, can an incidental trenching upon another field of legislation be ignored?

X X X (8) The primary object and the essential purpose of legislation must be distinguished from its ultimate or incidental results or consequences, for determining the character of the levy. A levy essentially in the nature of a tax and within the power of State Legislature cannot be annulled as unconstitutional merely because it may have an effect on the price of the commodity. A State legislation, which makes provisions for levying a cess, whether by way of tax to augment the revenue resources of the State or by way of fee to render services as quid pro quo but without

-: 320 :-

any intention of regulating and controlling the subject of the levy, cannot be said to have encroached upon the field of 'regulation and control' belonging to the Central Government by reason of the incidence of levy being permissible to be passed on to the buyer or consumer, and thereby affecting the price of the commodity or goods. Entry 23 in List II speaks of regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union. Entries 52 and 54 of List I are both qualified by the expression "declared by Parliament by law to be expedient in the public interest".

A reading in juxtaposition shows that the declaration by Parliament must be for the “control of industries” in Entry 52 and “for regulation of mines or for mineral development” in Entry 54. Such control, regulation or development must be “expedient in the public interest”. Legislation by the Union in the field covered by Entries 52 and 54 would not like a magic touch or a taboo denude the entire field forming subject-matter of declaration to the State Legislatures. Denial to the State would extend

-: 321 :-

only to the extent of the declaration so made by Parliament. In spite of declaration made by reference to Entry 52 or 54, the State would be free to act in the field left out from the declaration. The legislative power to tax by reference to entries in List II is plenary unless the entry itself makes the field “subject to” any other entry or abstracts the field by any limitations imposable and permissible. A tax or fee levied by the State with the object of augmenting its finances and in reasonable limits does not ipso facto trench upon regulation, development or control of the subject. It is different if the tax or fee sought to be levied by State can itself be called regulatory, the primary purpose whereof is to regulate or control and augmentation of revenue or rendering service is only secondary or incidental. (emphasis supplied)

(9) The heads of taxation are clearly enumerated in Entries 83 to 92-B in List I and Entries 45 to 63 in List II. List III, the Concurrent List, does not provide for any head of taxation. Entry 96 in List I, Entry 66 in List

-: 322 :-

II and Entry 47 in List III deal with fees. The residuary power of legislation in the field of taxation spelled out by Article 248(2) and Entry 97 In List I can be applied only to such subjects as are not included in Entries 45 to 63 of List II. It follows that taxes on lands and buildings in Entry 49 of List II cannot be levied by the Union. Taxes on mineral rights, a subject in Entry 50 of List II, can also not be levied by the union though as stated in Entry 50 itself the Union may impose limitations on the power of the State and such limitations, if any, imposed by Parliament by law relating to mineral development to that extent shall circumscribe the States’ power to legislate. Power to tax mineral rights is with the States; the power to lay down limitations on exercise of such power, in the interest of regulation, development or control, as the case may be, is with the Union. This is the result achieved by homogeneous reading of Entry 50 in List II and Entries 52 and 54 in List I. So long as a tax or fee on mineral rights remains in pith and substance a tax for augmenting the revenue resources of the State or a fee for rendering services by the State and it does not impinge

-: 323 :-

upon regulation of mines and mineral development or upon control of industry by the Central Government, it is not unconstitutional” (emphasis supplied)

It was further held that the freedom guaranteed under Article 301 does not mean freedom from taxation. It is for the parliament to exercise power in the field made available to it by Entries 52 and 54 in List I. It is also for Parliament to state by law the limitation and the sweep thereof which it may choose to impose on field available to the State for taxation by reference to Entry 50 in List II. Further, “it may not be for courts to venture into enquiry in just an individual case to find and hold what tax would hamper mineral development if Parliament has chosen to observe silence by not legislating or failed to express it.” Thus, a reasonable tax or fee levied by the State legislation cannot be construed as trenching upon the Union’s power to regulate power and control mines and minerals, were the observations in that case.

-: 324 :-

The aforesaid observations of the Hon’ble Supreme Court were made in the context of a Division Bench of the Calcutta High Court striking down the levy of cess on coal bearing land in exercise of the powers conferred by the State legislation (Cess Act, 1980). Thus, the Hon’ble Supreme Court held that the power to tax mineral rights is with the States, but the power to lay down limitations on exercise of such power in the interest of regulation and development or control, as the case may be, is with the Union.

In the instant case, Section 98-A does not tax mineral rights. It is only a tax on disposal of minerals as a forest produce by sale or otherwise which is relatable to Section 54 of List II, which entry is subject to only Entry 92-A of List I. (f) At this stage, it is relevant to note that the dictum in Kesoram Industries Ltd., has been doubted by another Bench of the Hon’ble Supreme Court and the matter has been referred to a Larger Bench in Mineral

-: 325 :-

Area Development Authority vs. SAIL [(2011)4 SCC 450]. But it is stated at the Bar that none of the questions referred to the Larger Bench is related to the issues raised in these cases.

(g) Two other decisions of the Hon’ble Supreme Court require consideration at this stage.

(i) In Orissa Cement Limited vs. State of Orissa, [AIR 1991 SC 1676], the imposition of cess on royalty in respect of land held for carrying mining operations under Orissa Cess Act, 1962 as amended in 1989 came up for consideration. The Hon’ble Supreme Court held that the royalty for carrying on mining operations or tax thereon cannot be equated to land revenue. Even assuming that the cess is a fee, the State legislature can impose a fee in respect of any of the matters on which it has the power to legislate, but the said power is subject to any of the Entries in List I. Entry 54 of List I deals with regulation of mines and mineral development is in the field of Parliamentary legislation “to

-: 326 :-

the extent to which such regulation and development under the control of the Union is declared by the Parliament by law to be expedient in the public interest”. Such a declaration is contained in Section 2 of the MMDR Act. It, therefore, follows that any State legislation to the extent it encroaches on the field covered by the MMDR Act, is not valid. Hence, it was held that the imposition of cess on royalty under the Orissa Act, was beyond the purview of the State Legislature by reason of the enactment of the MMDR Act.

(ii) In State of Bihar vs. Indian Aluminum Company [(1997) 8 SCC 360], the validity of Bihar Forest Restoration and Improvement of Degraded Forest Land Taxation Act, 1992 came up for consideration. It was held that the tax was being levied in effect on the activity of the removal or excavation of land. In other words, the tax was on the activity of mining because it is under the mining lease that mechanized and non-mechanised excavation as well as on ground excavation took place and

-: 327 :-

that is what was referred to in column 1 of the Schedule to the aforesaid Act thereto while determining the amount of tax leviable.

According to the Hon’ble Supreme Court, the pith and substance of the tax was on the activity on land and not on land itself and therefore was held to be outside the ambit of Entry 49 of List II which deals with levy of tax directly on land as a unit. It was held that the tax was on the excavation and use of the forest land not on the forest land as such. Therefore, in pith and substance, it is a tax on activity on land and not on land itself. Levy of tax was on the activity of removal of earth and not on the land itself and was, therefore, outside the ambit of Entry 49 of List II, were the observations of the Hon’ble Supreme Court. It was held that having regard to the nature of the tax levied and the field being covered by F.C. Act, the State of Bihar did not have legislative competence to pass the impugned Act and the same was struck down on that basis.

-: 328 :-

(h) Thus, what emerges from the aforesaid decisions is that in respect of grant of mining lease under the provisions of the MMDR Act, in view of the declaration made by Parliament under Section 2 of that Act, the activity of mining is within the domain of the Parliament. Although, Entry 23 List II gives power to the State Government to enact laws on regulations of mines and mineral development but that entry being subject to Entry 54 of List I. The State Government is denuded of making any law regarding regulation of mines and mineral development, which is covered under the MMDR Act. Similarly, Entry 50 of List II dealing with taxes on mineral rights is subject to any limitations imposed by Parliament by law relating to mineral development. No such limitation is imposed under MMDR Act, relating to levy of FDT which is infact, relatable to Entry 54 of List II

(i) In Hingir-Rampur Coal Company Ltd., the Orissa Mining Areas Development Fund Act, 1952, which imposed a cess, was upheld due to certain reasons as

-: 329 :-

narrated supra, but the Hon’ble Supreme Court recorded that the field covered by the said State Act was covered by the Central Act. In M.A.Tulloch and Co., also, it was held that MMDR Act, which pertains to regulation of mines and development of minerals had not appropriated to itself the power to levy tax or cess on minerals or mineral bearing land. This aspect has been clarified in Kesoram Industries Limited., by holding that the power to tax or levy a fee could be spelt out from Sections 13, 18 and 25 of MMDR Act. But, so long as no tax or fee is levied by the State Government in exercise of its powers in List II, which is contrary to the aforesaid sections, the State legislation would be saved. Also, tax or fee on minerals, particularly, at the time of its sale is not a subject matter under MMDR Act. In fact, in Kesoram Industries Limited., it has been categorically held that the power of regulation and control of minerals by the Parliament does not include the power of taxation so long as there is no express provision of taxation on minerals made by Parliament. In Orissa Mining Limited, the imposition of tax on royalty in respect

-: 330 :-

of land used for carrying mining operations under Orissa Mining Areas Development Fund Act, 1952 as amended by 1989 Act came up for consideration. In view of the declaration made under Section 2 of MMDR Act, it was held that the Orissa Act was beyond the purview of the State Legislature. In State of Bihar vs. Indian Alluminium Company, the validity of Bihar Forest Restoration and Improvement of Degraded Forest Land Taxation Act, 1992 was struck down, as it was held that the Bihar Legislature had no legislative competence to pass the impugned act. The said Act imposed tax on the activity of mining and not on minerals as such and was also, outside the scope of Entry 49 of List II, which deals with taxes on lands and buildings. Also, under Entry 50 List II, taxes on mineral rights is subject to any limitations imposed by Parliament by law, relating to mineral development.

(j) But, in the present case, the imposition of FDT is on the disposal of minerals as a forest produce by sale. The taxing event is disposal of minerals as a forest

-: 331 :-

produce by sale. It is not on the grant of mining or quarrying lease in forest areas. Neither is it on the activity of mining nor on areas or lands on which mining activity is carried out in forests of the State.

(k) On a comparison of the provisions of MMDR Act with Section 98-A and 98-B of the Act in question, it becomes clear that Parliament has not reserved to itself the power to tax minerals as goods i.e., as forest produce, on its sale. Also, imposition of sales tax on minerals as a forest produce is within the exclusive domain of the State Legislature, which is relatable to Entry 54 of List II. That entry is a taxation entry and only subject to Entry 92-A of List I and Article 286 of the Constitution. It is not a tax on mineral rights as found in Entry 50 of List II, which is subject to List I, but on goods i.e., minerals as forest produce or any other forest produce.

(l) In that view of the matter, the aforesaid citations are of no assistance to the petitioners as those citations are on mineral rights and on the activity of

-: 332 :-

mining. FDT is levied not on mineral rights, but on minerals as a forest produce i.e., goods, when they are sold. In our considered view, taxation on mineral rights as envisaged in Entry 50 of List II is totally distinct from and mutually exclusive to tax on minerals as a forest produce at the time of sale. The latter is in the nature of a sales tax, which is in the exclusive domain of State Legislature, subject to Entry 92 A of List I and Article 286 of the Constitution.

(m) Hence, Point No.(v) is answered by holding that the State Legislature is not denuded of its power to levy FDT in the nature of a sales tax on the disposal of minerals as a forest produce despite the declaration made under Section 2 of the MMDR Act having regard to Entry 54 List I. In view of our answers to Point Nos. (iii) and (iv) and on consideration of Point No. (v), we hold that the State Legislature is not denuded of its power to levy FDT on the disposal of minerals as a forest produce and answer

-: 333 :-

the point in favour of the State and other respondents and against the petitioners.

(16) Re: Point No. (vi):

Whether, having regard to the Forest Conservation Act, 1980 and the Environment Protection Act, 1986, the State Government is denuded of its power to levy FDT in view of there being repugnancy between the Karnataka Forest Act, 1963 (State Act) and the aforesaid Central Acts?

(a) Learned senior counsel Sri D.L.N.Rao and Sri Raghavacharyulu, contended that “forests” is a subject, which has been brought under List III or the Concurrent List by virtue of the 42nd amendment. Whatever may be the law that may have been enacted prior to the 42nd amendment by the State Legislature, when the subject “forests” was in the State List, subsequent to the subject being brought in the Concurrent List, the State Government is denuded of its power to legislate on aspects which are covered by the Union Government’s legislation

-: 334 :-

and in that regard, they pressed into service the doctrines of repugnancy and occupied field in the context of Article 254 of the Constitution.

(b) Reliance was also placed on a decision of the Hon’ble Supreme Court in the case of Godavarman. It was contended that although FDT was levied by the State Government prior to the 42nd amendment, subsequent there to, on the enactment of the F.C. Act and E.P. Act, and the judgment of the Hon’ble Supreme Court in Godavarman, the State Legislature has no power to levy FDT under Section 98-A of the Act as the F.C. Act and the State Act are both now in the Concurrent List and the field is now occupied by the central enactment.

(c) Article 254 has been adverted to by this very Bench in Anitha Kishori D’Silva vs. The Land Acquisition Officer-cum-Assistant Commissioner, Mangalore and others [ILR 2015 Kar. 3769], in the following manner:

-: 335 :-

“19. Clause (1) of Article 254 states that in case of repugnancy of a law made by a State legislature with the law made by the Parliament relating to a subject in the concurrent list (List III of Seventh Schedule), the law made by the Parliament would prevail and the State law would fail to the extent of repugnancy, whether the law made by the Parliament is prior to or subsequent to the State law.

(1) of Article 254 is the general rule, clause (2) is an exception to clause (1) and the proviso to

-: 336 :-

clause (2) qualifies the exception vide, Deep Chand v. State of U.P. (AIR 1959 SC 648). In other words, even after obtaining the assent of the President to a State law or enactment, which is inconsistent with the previous Parliamentary law, relating to a concurrent subject, would be that the State law would prevail in that State and overrides the provisions of the Central law in their applicability to that State only. But the predominance of the State Act or law may, however, be taken away if Parliament legislature under the Proviso to clause (2) enacts a new law or amends the existing Central law. Vide Baraj v. Henry Ah Hoe, (AIR 1983 SC 150), HOECHST Pharmaceuticals Limited v. The State of Bihar [1983(4) SCC 45], M. Karunanidhi v. Union of India [1979 (3) SCC 431].

-: 337 :-

The doctrine of repugnancy as contemplated under clause (2) of Article 254 of the Constitution of India is applicable only when the Parliament or Central legislature as well as the State legislature enact law on matters included in the concurrent list. The obtaining of the assent of the President of India of State law under clause (2) serves to cure repugnancy of the State law only with reference to an earlier Central law. It cannot confer validity on the State law with reference to subsequent Central law or amendment made to Central law.

-: 338 :-

enlarged enabling the Central legislature to enact a law adding to, amending, varying or repealing a law passed by the State legislature. The Central legislature has overriding and plenary power of legislation and in exercise of such authority it could amend, repeal, modify or add to any existing law. Law made by the Central legislature shall prevail.

(d) The relevant decisions under Article 254 of the Constitution cited by petitioners’ counsel are as under:-

(i) In Zaverbhai Amindas vs. State of Bombay [AIR 1954 SC 752], the provisions of Essential Supplies [Temporary Powers] Act, including the re-enactment of Section 7 in Act No.24 of 1946, as amended by Act.No.52 of 50 and the Bombay Essential Supplies [Temporary Powers] and the Essential Commodities and Cattle

-: 339 :-

[Control] Enhancement of Penalties Act, (Act No.36 of 1947) came up for consideration. While adverting to Article 254(2) of the Constitution, His Lordship, Venkatarama Ayyar, J., held that the important thing to consider with reference to Article 254(2) is whether the legislation is “in respect of the same matter”. If the later legislation deals not with the matters which form the subject of the earlier legislation but with other and distinct matters, though of a cognate and allied character then Article 254(2) will have no application. In other words, when there is a legislation covering the same ground both by the Centre and by the State, both of them being competent to enact the same, the law of the Centre should prevail over that of the State. Thus, the principle of implied repeal would apply if the subject matter of the later legislation is identical to the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment. In such a case, the later legislation made by the Parliament would prevail in respect of the same matter as that of the State Law. In that case, it was held that the

-: 340 :-

State Law i.e., Act No.36 of 1947 had to yield to the Parliamentary legislation namely Act.24 of 1946 as amended by Act.52 of 50. Thus, the test laid down by the Hon’ble Supreme Court is that of legislation in respect of the same matter.

(ii) The aforesaid decision of the Constitution Bench was referred to in Tika Ramji and others etc. vs. The State of Uttar Pradesh and others [AIR 1956 SC 676], which is also a decision of the Constitution Bench. In that case, the validity of the U.P.Sugarcane (Regulation of Supply and Purchase) Act, (UP Act No.24 of 1953) and the Notifications issued by the UP Government were assailed. Parliament thereafter, had enacted the Essential Commodities Act, 1955 (Act No.10 of 1955) and in exercise of powers conferred by Section 3 of the said Act, the Central Government promulgated the Sugar Control Order, 1955 and the Sugarcane Control Order, 1955. Prior to that Parliament had enacted the industries (Development and Regulation) Act, 1951 (Act.65 of 1951).

-: 341 :-

It was held that the State Act was repugnant to Act 65 of 1951 and Act 10 of 1955 and thus, void, by reason of such repugnancy, after considering Entry 52 of List I, Entries 24 and 27 of List II and Entry 33 of List III. The Constitution Bench held that doctrine of repugnancy has to be considered when the law made by the Parliament and the law made by the State Legislature occupy the same field because if both these pieces of legislation deal with separate and distinct matters though of a cognate and allied character, repugnancy does not arise. The approach was to see whether the Parliament and State Legislature sought to exercise their powers over the same subject matter or whether the laws enacted by the Parliament were intended to be a complete exhaustive code or in other words, expressly or impliedly evinced an intention to cover the whole field. In the said case, the provisions of Act 65 of 1951 as amended by Act 26 of 1953, Act 10 of 1955 and the Sugar Control Order, 1955 with those of the impugned Act and the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954, passed thereunder were

-: 342 :-

compared. It was held that the impugned Act and the Notifications thereunder were intra vires the State Legislature and were binding on the petitioners therein, as the doctrine of repugnancy did not apply.

(iii) In Deep Chand vs. State of UP. [AIR 1959 SC 648], the question was whether the U.P. Transport Service (Development) Act, 1955 (Act IX of 1955) (U.P.Act), did not, on the passing of the Motor Vehicles (Amendment) Act, 1956 (100 of 1956) (Central Act) become wholly void under Article 254 (1) of the Constitution but continued to be a valid and subsisting law, supporting the scheme already framed under the U.P. Act. It was held that the U.P. Act was void from the date of the amending Act but actions taken before that date cannot be affected. It was held that if the pre-Constitution law exists for the post-Constitution period for all the past transactions, by the same parity of reasoning, the State law subsists after the making of the new law by the Parliament for the past transactions. Thus, it was held that

-: 343 :-

Act 100 of 1956 i.e., the Central Act prevailed over the State Act from the date of the amendment of the Central Act, having regard to Article 254 (2) of the Constitution.

(iv) In M. Karunanidhi vs. Union of India [AIR 1979 SC 898], the circumstances when repugnancy between law made by the State and Parliament would arise have been re-stated. In that case it was held that Section 29 of Tamilnadu Public Men (Criminal Misconduct) Act, 1974 as substituted by Act 16 of 1974 was not repugnant to Section 161 of the Indian Penal Code or Section 5(1)(d) of Prevention of Corruption Act, 1947. In the said case, it was held as under:

“(3) Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List

-: 344 :-

and entrenchment, if any, is purely incidental or inconsequential.

(4) Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Art.254 (2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Art.254.”

(v) In Rajiv Sarin vs. State of Uttarkhand [(2011) 8 SCC 708], the provisions of the Kumaun and Uttarkhand Zamindari Abolition and Land Reforms Act, 1960, which is a State legislation (State Act) which has received Presidential assent and the provisions of the

-: 345 :-

Indian Forest Act, 1927, which is a Central enactment, were considered to ascertain as to whether there was repugnancy of the former Act and it was held that the two Acts operated in different fields and in respect of distinct subjects and acquisition of forest land under them was also conceptually different. It was held that the State Act was not repugnant to the Central Act and therefore, Presidential assent under Article 254 (2) (although it was obtained) was not required. It was held that for the applicability of Article 254 there must be direct conflict and both laws must be completely inconsistent or absolutely irreconcilable. The Parliamentary law must be exhaustive, unqualified and cover the entire field. The subject matter of both legislations must be the same. In order to ascertain the subject matter of enactment under List III, doctrine of pith and substance would apply. It was held that the State Act being an enactment for agrarian reforms and the Indian Forest Act, 1927 dealing mainly with forests, the pith and substance of Forest Act, 1927, was different from the State Act therein and hence, they both

-: 346 :-

could co-exist. The law as to the nature of President’s assent under Article 254(2) was stated as follows:-

“The law as to the nature of the President’s assent under Article 254(2) may be stated as follows:

(a) Article 254(2) contemplates ‘reservation for consideration of the President’ and also ‘assent’.

Reservation for consideration is not an empty formality. Pointed attention of the President is required to be drawn to the repugnance between the earlier law made by Parliament and the contemplated State legislation and the reasons for having such law despite the enactment by Parliament.

(b) The word ‘assent’ used in clause (2) of Article 254 would in context mean express agreement of mind to what is proposed by the State.

(c) In case where it is not indicated that ‘assent’ is qua a particular law made by Parliament, then it is open to the Court to call for the proposals made by the State for the

-: 347 :-

consideration of the President before obtaining assent.

(d) However, it is not necessary that in every case the assent of the President in specific terms had to be sought and given for special reasons in respect of each enactment or provision or provisions.

(e) The assent sought for and given by the President in general terms could be effective for all purposes unless specific assent is sought and given in which event it would be operative only to that limited extent. Thus, if the assent is sought and given in general terms it would be effective for all purposes.”

(e) In the instant case, the provisions of the F.C. Act and the E.P. Act have to be considered in juxtaposition with the Karnataka Forest Act, 1963, which has received Presidential assent to ascertain the pith and substance of the said Acts as the Central enactments are subsequent to the State law.

-: 348 :-

(i) The Karnataka Forest Act, 1963 received Presidential assent on 28/01/1964 and was gazetted on 27/02/1964. The object of the Act is to consolidate and amend the law relating to forest and forest produce in the State of Karnataka. The Act deals with various types of forest such as reserved forests, village forests, District forests, protected forests; control over forests and lands not being the property of the Government; control over forest produce; cattle trespass; levy of Forest Development Tax and such other miscellaneous matters. Various other enactments applicable to various parts of the State of Karnataka prior to its reorganization have been repealed by the Act except to the extent they have been saved under the Act. The Karnataka Forest Rules, 1969 have been enacted in exercise of powers conferred by Sections 30, 33, 38, 50, 59, 97, 101 and 102 of the Act. These rules deal with various aspects of the Act. Chapter XII deals with sale of forest produce, which includes minerals excavated from forest areas.

-: 349 :-

(ii) Forest Conservation Act, 1980 and the rules made thereunder are with an object to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto. The object of the Act is to conserve forests throughout India. Thus, Section 2 restricts de-reservation of forests or use of forest land for non-forest purpose. Section 3 provides for a constitution of advisory committee for the grant of approval under Section 2 and to deal with any other matter connected with the conservation of forest which may be referred to it by the Central Government. Section 3-A deals with penalty for contravention of the provisions of the Act, while Section 3-B deals with offences committed by the authorities and Government Departments. The Central Government is empowered to make rules for carrying out the provisions of the Act under Section 4 of the Act. The FC Rules of 2003 deal with the composition of the forest advisory committee; constitution of the regional empowered committee; submission of proposals and processing of proposals submitted under

-: 350 :-

Section 2 of the F.C. Act and the procedure for grant of final approval.

(iii) The E.P. Act is also a Parliamentary legislation providing for the protection and improvement of environment in general and for matters connected therewith. The main thrust of the Act is prevention, control and abatement of environmental pollution. Several rules have been made by virtue of Section 25 of the E.P. Act. The expression “environment” in Section 2(a) of the E.P. Act includes water, air and land and the inter relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro organism and property. “Environmental pollution” is defined in Section 2(c) of the said Act to mean the presence in the environment of any environmental pollutant. (f) While considering the aforesaid three enactments in juxtaposition, it is noted that the F.C. Act, and the Karnataka Forest Act, 1963 are traceable to Entry

-: 351 :-

17-A of List III, while the E.P. Act, is traceable to Article 248 read with Entry 97 of List I even if it is not relatable to any other entry in the said List. Thus, what has to be considered is the question as to whether the levy of FDT under the Act entrenches upon any provision of E.P. Act, which is enacted pursuant to List I or is repugnant to F.C. Act, which is enacted in List III.

(g) Prior to answering the said question, it is necessary to state the fundamental principles regarding distribution of legislative powers between the Parliament and State Legislature. Article 245 of the Constitution is the fountain head of the legislative power. The legislative field between the Parliament and the State Legislatures is circumscribed by Article 246. The exclusive power of the Parliament to make law with regard to matters enumerated in List I (Union List) and the exclusive power of the State Legislature to make laws in respect of matters enumerated in List II called the State List is undeniable. But, the power of the State to enact a law in respect of

-: 352 :-

matters enumerated in List II is subject to the power of the Parliament to make laws with respect to any of the matters enumerated in List III called the Concurrent List and also the Union List. List III or the Concurrent List enumerates matters in which both the Parliament and State Legislature have power to make laws. That apart, as already noted under Article 248 of the Constitution, Parliament has the exclusive power to make laws in respect of any matter not enumerated in the concurrent List or the State List. This is reflected in Entry 97 of List I as a residuary power. This power also extends to imposition of a tax not mentioned in the State List or concurrent List. Thus, State laws are subject to laws enacted by the Parliament under the residuary powers vested in Parliament as well as restrictions imposed by various entries in List I. The principles guiding the distribution of legislative powers between the Parliament and the State Legislature have been summarized and re- stated by the Hon’ble Supreme Court in the case of Hoechst Pharmaceuticals Limited vs. State of Bihar

-: 353 :-

[(1983) 4 SCC 45] and they are extracted with emphasis on taxation power as under:-

“(1) The various entries in the three Lists are not “powers” of legislation but “fields” of legislation. The Constitution effects a complete separation of the taxing power of the Union and of the States under Article 246. There is no overlapping anywhere in the taxing power and the Constitution gives independent sources of taxation to the Union and the States.

(2) In spite of the fields of legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List III on the other, the State law will be ultra vires and shall have to give way to the Union law.

-: 354 :-

(3) Taxation is considered to be a distinct matter for purposes of legislative competence. There is a distinction made between general subjects of legislation and taxation. The general subjects of legislation are dealt with in one group of entries and power of taxation in a separate group. The power to tax cannot be deduced from a general legislative entry as an ancillary power.

(4) The entries in the Lists being merely topics or fields of legislation, they must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The words and expressions employed in drafting the entries must be given the widest- possible interpretation. This is because, to quote V. Ramaswami, J., the allocation of the subjects to the Lists is not by way of scientific or logical definition but by way of a mere simplex enumeratio of broad categories. A power to legislate as to the principal matter specifically mentioned in the entry shall also include within its expanse the legislations touching incidental and ancillary matters.

-: 355 :-

(5) Where the legislative competence of the Legislature of any State is questioned on the ground that it encroaches upon the legislative competence of Parliament to enact a law, the question one has to ask is whether the legislation relates to any of the entries in List I or III. If it does, no further question need be asked and Parliament's legislative competence must be upheld. Where there are three Lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation the doctrine of pith and substance has to be applied to determine as to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other Legislature is of no consequence. The court has to look at the substance of the matter. The doctrine of pith and substance is sometimes expressed in terms of ascertaining the true character of legislation. The name given by the Legislature to the legislation is immaterial. Regard must be had to the enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and

-: 356 :-

superficial encroachments are to be disregarded.

(6) The doctrine of occupied field applies only when there is a clash between the Union and the State Lists within an area common to both. There the doctrine of pith and substance is to be applied and if the impugned legislation substantially falls within the power expressly conferred upon the Legislature which enacted it, an incidental encroaching in the field assigned to another Legislature is to be ignored. While reading the three Lists, List I has priority over Lists III and II and List III has priority over List II. However, still, the predominance of the Union List would not prevent the State Legislature from dealing with any matter within List II though it may incidentally affect any item in List I.” (emphasis supplied)

(h) Comparative tables showing the differences between the Karnataka Forest Act, 1963 and F.C. Act provided by learned Advocate General for the State is reproduced hereunder:-

-: 357 :-

Sl.No. Forest Conservation Act,1980(Central Act) Karnataka Forest Act, 1963 (State Act) 1. An Act to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto. An Act to consolidate and amend the law relating to forests and forest produce in the State of Karnataka 2. Provisions deal only with regard to restricting use of forest land for non- forest purpose or de- reservation of forests. Provisions of Karnataka Forest Act deal with Protection, Regulation and Management of Forests and Forest Produce in Karnataka 3. Deals exclusively with provisions regarding to regulation of diversion of forest land for non- forest purpose. The provisions put restrictions on authorities regarding diversion of forest land for non-forestry purpose. Does not have provisions regarding regulation of diversion of forest land for non- forest purpose. 4. No provision regarding regulation, management of forest and forest produce Contains provisions regarding Protection, Regulation and Management of Forest Produce in Karnataka including the proviso to levy FDT on forest produce for development of forests through raising of plantations and ancillary activities.

-: 358 :-

The aims and objects of the two Acts are totally distinct. While the Central Act deals with permissions and approvals to be granted prior to diversion of forest land for non-forest purposes, the State Act concerns itself with forest produce and consolidating the law relating to forest in general. Although, mining and quarrying in forest areas are non-forest activities, prior permission to divert forest land for such activities has to be obtained by a party from the Central Government under the Central Act. Such a permission is to be obtained prior to commencement of mining activity in forest areas. But the levy of FDT is on minerals as a forest produce after the extraction of such minerals at the time of its sale. Under the Central Act, the levy is not in the form of a tax but under the State Act, it is in the form of a tax.

(i) Further, on an application of the aforesaid legal principles, it is held that the Karnataka Forest Act, 1963 is a comprehensive Act, dealing with various types of forests and forest produce in the State of Karnataka, while F.C.

-: 359 :-

Act deals only with conservation of forests in the context of use of forest for non-forest activity. Thus, F.C. Act concerns with only one aspect of forest namely, conservation. The said Act does not deal with forest produce, levy of Forest Development Tax and such other aspects. Section 2 of F.C. Act is the heart and soul of the said Act. The said section begins with a non-obstante clause and it states that notwithstanding anything contained in any other law for the time being in force in a State, no State Government or any other authority shall make, except with the prior approval of the Central Government, any order, directing (i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force of that State) or any portion thereof, shall cease to be reserved (ii) that any forest land or any portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned,

-: 360 :-

managed or controlled by Government; (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for re-afforestation. The explanation states that non-forest purpose means the breaking up or clearing of any forest land or portion thereof for (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants; (b) any purpose other than re-afforestation, but does not include any work in relation or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, water holes, trench marks, boundary marks, pipelines or other like purposes.”

(j) While on the same narrative, reference needs to be made to Godavarman referred to above. In that case, the point for consideration was “whether before diversion of forest land for non-forest purposes and

-: 361 :-

consequential loss of benefits accruing from the forest, should not the user agency of such land, be required to compensate for the diversion, if so, should not the user agency be required to make payment of Net Present Value (NPV) of such diverted land so as to utilize the amounts so received for getting back in the long run, the benefits which are lost by such diversion?” Also, the manner of calculation of NPV was considered in the backdrop of various legislations such as, F.C. Act, E.P. Act, and the Acts concerning water and air pollution namely, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. In the aforesaid case, the Ministry of Environment and Forests (MOEF) was directed by the Hon’ble Supreme Court to formulate a scheme providing that whenever any permission was granted for change of use of forest land for non-forest purposes and one of the conditions of the permission being that there should be compensatory afforestation, then the responsibility of the State should be that the user agency should be required to set apart a sum

-: 362 :-

of money for doing the needful. The scheme was submitted by MOEF on 23/02/2002 and the Central Empowered Committee (CEC) on consideration of relevant material including the scheme submitted by MOEF, made its Report containing recommendations on 09/08/2002. The Report contained the following recommendations:

“12. The Central Empowered Committee (CEC) on consideration of relevant material, including the scheme submitted by MoEF made its report (IA No.826) containing recommendations dated 9-8-2002. The report, taking note of the present system of compensatory afforestation as per guidelines issued by MoEF from time to time under the F.C. Act, the procedure for receipt and utilization of funds for compensatory afforestation, activities permissible under compensatory afforestation, adequate compensation for loss of forest land – recovery of net present value, funds for catchment area, treatment plant and involvement of user agency for compensatory afforestation, made the following recommendations:

-: 363 :-

(a) In addition to the funds realized for compensatory afforestation, net present value of the forest land diverted for non-forestry purposes shall also be recovered from the user agencies, while according approval under the Forest (Conservation) Act, 1980.

(b) A “Compensatory Afforestation Fund” shall be created in which all the monies received from the user agencies towards compensatory afforestation, additional compensatory afforestation, penal compensatory afforestation, net present value of forest land, catchment area treatment plan funds, etc., shall be deposited. The rules, procedure and composition of the body for management of the Compensatory Afforestation Fund shall be finalized by the Ministry of Environment and Forests with the concurrence of the Central Empowered Committee within one month.

(c) The funds received from the user agencies in cases where forest land diverted falls within protected areas i.e. area notified under Section 18, 26-A or 35 of the Wild Life (Protection) Act, 1972, for undertaking

-: 364 :-

activities related to protection of biodiversity, wildlife, etc., shall also be deposited in this fund. Such monies shall be used exclusively for undertaking protection and conservation activities in protected areas of the respective State/UT.

(d) The amount received on account of compensatory afforestation but not spent or any balance amount lying with the State/UT or any amount that is yet to be recovered from the user agency shall also be deposited in this fund.

(e) Besides artificial regeneration (plantations), the funds shall also be utilized for undertaking assisted natural regeneration, protection of forests and other related activities. For this purpose, site-specific plans should be prepared and implemented in a time-bound manner.

(f) The user agencies, especially the large public sector undertakings such as Power Grid Corporation, NTPC, etc., which frequently require forest land for their projects should also be involved in undertaking compensatory afforestation by establishing special-purpose

-: 365 :-

vehicles. Whereas the private sector user agencies may be involved in monitoring and most importantly, in protection of compensatory afforestation. Necessary procedure for this purpose would be laid down by MoEF with the concurrence of the Central Empowered Committee.

(g) Plantations must use local and indigenous species since exotics have long- term negative impacts on the environment.

(h) An independent system of concurrent monitoring and evaluation shall be evolved and implemented through the Compensatory Afforestation Fund to ensure effective and proper utilization of funds.”

The MOEF in principle accepted the aforesaid recommendations of CEC, the same were also not opposed by any State Government just as the Union of India had accepted the same. The Hon’ble Supreme Court on detailed examination of the Report and the recommendations of the CEC directed Union of India to frame comprehensive rules with regard to the constitution

-: 366 :-

of a body and management of the compensatory afforestation fund in concurrence with the CEC. By Notification dated 23/04/2004 issued by MOEF in exercise of powers conferred under sub-section (3) of Section 3 of the E.P. Act, 1986, an authority known as Compensatory Afforestation Fund Management and Planning Authority (hereinafter referred to as CAMPA), was set up for the purpose of management of money towards compensatory afforestation, NPV and any other monies recoverable in pursuance of the order of the Hon’ble Supreme Court and in compliance with the conditions stipulated by the Central Government “while according approval under the F.C. Act, for non-forestry uses of the forest land”. Details regarding constitution of the executive body of the authority and the management of the fund are noted in the said judgment. The money received for compensatory afforestation is along with the proposals for diversion of forest land under the F.C. Act.

-: 367 :-

The recovery of NPV from the user agency at the time of seeking permission for diversion of forest land for non-forest activities was also considered. According to the Hon’ble Supreme Court, NPV is the present value (PV) of net cash flow from a project, discounted by the cost of capital. The object behind NPV is to levelise cost. NPV is a method by which future expenditures (costs) and benefit are levelised in order to account for the time value of money. Under NPV, all costs are discounted to some reference date. The reason to charge NPV is to discount future costs and future benefits by use of appropriate discount rate and bring down such costs and benefit to the reference date. Fixing appropriate discount rate in valuation of the costs and benefits arising from forestry as benefit, would then be relevant.

The Notification dated 23/04/2004 issued by MOEF, constituting CAMPA, was challenged by contending that the same did not have any Parliamentary or legislative control. While referring to various clauses of the Notification, it was

-: 368 :-

contended that the funds sought to be created under CAMPA lacked accountability and financial control and discipline. It was further contended that forests vests in the Government, they are State properties and therefore, all amounts received ought to go to consolidated fund of India or consolidated fund of the State or to public funds, as the case may be. On considering the constitutional provisions concerning the distribution of financial powers between the Central and State Governments, it was held that the body set up or the fund generated to protect ecology and provide for regeneration could not be in the constitutional scheme of things be considered and treated as a fund under Articles 266, 283 or 284 of the Constitution. Neither Article 110 nor 119 and/or Article 294 or 195 would have any application, was the observation of the Apex Court. It was held that the imposition of the NPV is a charge or a fee which fell within Entry 47 read with Entry 20 of List III. The fund set up is a part of “economic and social planning”, which comes within Entry 20 of List III and the charge which is levied

-: 369 :-

for the purpose would come under Entry 47 of List III and therefore, Article 110 was not attracted.

(k) In view of the categorical pronouncement of the Hon’ble Supreme Court that NPV is a charge or a fee and CAMPA is a fund set up for collection of the charge or fee at the time of grant of approval for utilization of forests or dereservation of forests for non-forest purposes, it would imply that NPV is not a tax and CAMPA is not a fund set up by any collection in the form of tax. On the other hand, FDT is a tax collected at the time of sale of forest produce relatable to Entry 54 of List II. This has been so held by a Division Bench of this Court in Gurusiddappa, which judgment has attained finality. Therefore, FDT is relatable only to List II whereas, NPV and CAMPA are relatable to List III. Thus, in our view, the doctrine of repugnancy as enunciated in Article 254 of the Constitution would not arise. It was further held by the Hon’ble Supreme Court that amounts under CAMPA have to be used for regeneration of the eco system and the same

-: 370 :-

cannot be handed over to any State Government on the premise that the ecology is not the property of any State but belongs to all, being a gift of nature for the entire Nation. The object of the F.C. Act and E.P. Act is protection of the environment. These acts do not deal with any proprietary rights of any one. The Hon’ble Supreme Court further held that for grant of approval under Section 2 of the F.C. Act, besides payment of NPV as calculated by MOEF, the user agencies shall have to give undertakings to pay any remaining account if any, pending finalization of determination by the experts. Thus, it becomes clear that the payment of NPV under Section 2 of the F.C. Act, is at the time of seeking approval for non forest activities in forest areas but on the other hand, FDT is collected at the time of disposal of forest produce by sale or otherwise. In our view, the nature and character of the two levies are distinct and different. The persons who are subjected to the levies, the manner of assessment and collection are also distinct. Under the F.C. Act, the amount is paid by the person who seeks diversion of forest land for non-

-: 371 :-

forest activity at the time of seeking approval of the same from the Central Government. But in the case of FDT, a purchaser of minerals as a forest produce, has to pay the tax either to the State Government or to a corporation, owned or controlled by the State Government or a body notified by the State Government. The latter is in the form of a sales tax while the former is in the nature of a fee for grant of approval for conducting non-forest activities in forest areas. NPV is paid by a person who conducts mining activity in forest areas, while the purchaser of minerals as a forest produce would have to pay FDT to the State Government. The collection is also made by different authorities. The two levies are distinct and mutually exclusive. Though the object of FDT and payment towards CAMPA fund may be regeneration of forests having regard to the distinct nature of levies, we hold that there is no overlapping in the two levies. One has nothing to do with the other. In view of the aforesaid narration, we hold that levy of FDT under Section 98-A of the Act as well as

-: 372 :-

Section 98-B of the Act are not repugnant to any of the provisions of the F.C. Act, or the E.P.Act (Central Acts).

(l) There is another reason to hold that the Act in question is not repugnant to either of the Central Acts. This is by application of doctrine of pith and substance relied upon by learned Advocate General to buttress his submission that there is no conflict between the State Act and the two Central Acts. The power to legislate which is stated in Article 246 have to be read with the various Entries in the three Lists, which are the fields of legislation which define the respective areas of legislative competence of the Union and State Legislatures. While interpreting these entries, they should be viewed not in a narrow or a myopic manner but by giving the widest scope with regard to their meaning particularly, when the vires of a provision of a statue is assailed. In such circumstances, a liberal construction must be given to the entry by looking at the substance of the legislation and not its mere form. However, while interpreting the Entries in the case of an

-: 373 :-

apparent conflict, every attempt must be made by the Court to harmonize or reconcile them. Where there is an apparent overlapping between two Entries, the doctrine of pith and substance is applied to find out the true character of enactment and the entry within which it would fall. The doctrine of pith and substance, in short, means that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the Legislature which enacted it, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another Legislature.

Also, in a situation where there is overlapping, the doctrine has to be applied to determine to which entry a piece of legislation could be related to. If there is any trenching on the field reserved to another Legislature, the same would be of no consequence. In order to examine the true character of an enactment or a provision thereof, due regard must be had to the enactment as a whole and to its scope and objects. It is said that the question of invasion into another legislative

-: 374 :-

territory has to be determined by substance and not by degree.

(m) In case of any conflict between entries, in Lists I and II, the power of Parliament to legislate under List I will supersede when, on an interpretation, the two powers cannot be reconciled. But if a legislation in pith and substance falls within any of the entries of List II, the State Legislature’s competence cannot be questioned on the ground that the field is covered by Union List or the Concurrent List, vide Prafulla Kumar Vs. Bank of Commerce, Khulna, [AIR 1947 P.C.60].

(n) When the field is occupied by a Central enactment and there appears to be an apparent conflict with the state enactment, the attempt of the Court must be to analyze the provisions of the respective enactments, so as to ascertain whether the same could be harmoniously construed or interpreted without the two sets of enactments trenching upon the other. A few decisions of the Hon’ble Supreme Court on the doctrine of

-: 375 :-

pith and substance cited by learned Advocate General, are as under:

(i) In fact, in State of Bombay vs. F.N. Balsara (AIR 1951 SC 318), the matter arose under the Entries in the VII Schedule of the Government India Act 1935, the question was whether Bombay Prohibition Act, encroached upon Entry 19 of List I and Entry 31 of List II. It was held that the principles which govern the interpretation of lists, one is, that none of the items in each List is to be read in a narrow or restricted sense; and the second, is, that where there is a seeming conflict between an Entry in List II and List in I, an attempt must be made to ascertain whether the two entries cannot be reconciled to avoid a conflict of jurisdiction.

(ii) In B.Vishwanathiah & Co. vs. State of Karnataka [1991 SCC (3) 358] Entry 52 of List I, Entries 24 and 27 of List II and Entry 33 of List III with regard to silk industry came up for consideration before the Hon’ble Supreme Court. The question was as to

-: 376 :-

whether Karnataka Silkworm, Seed and Cocoon (Regulation of Production, Supply and Distribution) (Amendment) Act, 1979 was enacted with legislative competence by the State Legislature in the face of a declaration as to expediency of the Union Government to control having been made under Section 2 of Central Silk Board Act in terms of Entry 52 of List I. It was held on the application of doctrine of pith and substance, the Central Act only controlled the process of manufacture or production while the State Act dealt with the raw materials and the distribution of the products of the industry as the subject fell under Entry 33 of List III. Thus, the State Act was held to be within the State’s legislative competence.

(iii) In M.P. Vidyut Karamchari Sangh vs. M.P. Electricity Board [(2004)9 SCC 755], it has been held that both Parliament and the State within their own legislative competence may make legislations covering more than one entry in the three Lists. That Article 254 of the Constitution would be attracted only when the

-: 377 :-

legislations covering the same ground both by the centre and by the state operate in the same field, both of them being competent to enact. Also the principles enunciated in Article 254 would be resorted to only when there exists direct conflict between two provisions and not otherwise.

iv) In Dharappa vs. Bijapur Co-operative Milk Producers Societies Union Ltd. [(2007) 9 SCC 109], the question, as to whether, any repugnancy between Karnataka Co-operative Societies Act, 1959 and Industrial Disputes Act, 1947, the former made under Entry 32 of List II and the latter under Entry 22 of List III, existed. It was held that when presidential assent was obtained for the repugnant State Act, the said repugnant provisions would prevail over the provisions of the Central Act in the State concerned.

(o) We reiterate that repugnancy or inconsistency as contemplated under Article 254 of the Constitution would not apply in the instant case, as the two enactments are relatable to List II and List III and

-: 378 :-

both are not in the Concurrent List. Also, by applying the doctrine of pith and substance, it is stated that Sections 98-A and B of the Act, do not entrench upon any provision or scheme under E.C. Act or E.P. Act.

Thus, it is held that power to tax minerals as a forest produce is with the state legislature in List II, but the power to lay down limitation on exercise of such power in public interest and to take control is with the Union. This is on a homogeneous reading of Entry 54 of List II and Entry 54 of List I. So long as a tax on minerals as a forest produce relates in pith and substance to the augmenting of the revenue resources of the State and does not impeach the regulation of mines and development of minerals under the control of the Union Government, it is not unconstitutional. Thus, on an application of doctrine of pith and substance, it is held that imposition of FDT on minerals as a forest produce, has no relation to regulation of mines and development of minerals and neither is there any encroachment on F.C.

-: 379 :-

Act or E.P. Act. In fact, the dicta of the Hon’ble Supreme Court is to the effect that even if there is an incidental encroachment by a State Act on a Central Act, that would not vitiate the State Act. In the instant case the levy of FDT is related to Entry 54 of List II and it is in the nature of sales tax. There is no encroachment on any other Central Act as Union of India has no power to levy sales tax unless it is a case of inter-state sale or export sale. Also, the State Act prevails over Indian Forest Act, 1927. Therefore, we answer this issue against the petitioners and in favour of the State Government.

(17) Re: Point No. (vii): Whether FDT could be levied at the rate of 12% on the sale consideration when sub-section (1) of Section 98-A states that it could be levied at the rate of 8% on the amount of sale consideration paid therein?

(a) Section 98-A of the Act prescribes levy of FDT at the rate of 8% on the sale consideration, which is the

-: 380 :-

statutory rate fixed under the Act. By communication dated 12/09/2008 issued to all the mining lease holders, it was stated that FDT at the rate of 8% has to be collected on the sale value at the time of issuance of permits. But by Corrigendum dated 22/10/2008, it was stated that FDT has to be recovered at the rate of 12% on the sale of forest produce as minerals such as iron ore and manganese are raw materials for industry and the buyers are industrialists. Thus, the rate of FDT has been enhanced to 12% on the sale consideration on minerals as forest produce and a demand has been made at the enhanced rate.

(b) It is contended on behalf of the petitioners that the demand for payment of FDT ought not to be at 12% on the sale consideration contrary to the statutory rate. It is contended that the said demand at the enhanced rate is illegal and arbitrary. This submission is made on the assumption that FDT is leviable under Section 98-A of the

-: 381 :-

Act. No contra argument has been raised on behalf of the State. (c) We find considerable force in the submission made on behalf of the petitioners in this regard and hold that the demand for the payment of FDT cannot be over and above what has been fixed by the Act i.e., 8% on the sale consideration. Any attempt to collect FDT at a rate higher than 8% is illegal, the same being contrary to the statute. It is only in the table annexed to proviso to Section 98A that FDT can be collected at 12% on sale value on the produce mentioned therein, including minor forest produce which is defined in Rule 2(6) of the Rules. Hence, this point is answered in favour of the petitioners, who are liable to pay FDT and against the State. (18) Re: Point No. (viii):

In the event the petitioners succeed in these writ petitions, whether they are entitled to refund of FDT paid by them with interest?

(a) Learned counsel for the petitioners contended that if this Court is to hold in favour of the petitioners, by

-: 382 :-

quashing impugned notification dated 16/08/2008 then in that case, the petitioners are not liable to pay any FDT and they are entitled to refund of tax paid by them with interest at the rate of 18% p.a. It is submitted on behalf of petitioners that arrears of FDT is collected at the rate of 18% p.a. and therefore, the refund of tax must also be at the rate of 18% p.a. This submission was opposed to by Addl. Advocate General by placing reliance on Mafatlal Industries Ltd. and others vs. Union of India and others (1997(5) SCC 536) (Mafatlal Industries Ltd). This was countered by learned Senior Counsel for the petitioners while bringing to our notice the interim orders passed in these cases and also the fact that Mafatlal’s Industries Ltd., is not applicable to the present case. It was submitted that the doctrine of unjust enrichment is not applicable to the present case and therefore, the refund of tax paid may be ordered with interest.

(b) At the outset it is necessary to extract the interim orders passed in these cases as under:

-: 383 :-

(i) In W.P.No.2642/2009 by order dated 22/2/2009, interim stay was granted. Consequently, notification dated 16/08/2008 gazetted on 27/8/2008; letter dated 22/9/2008 issued by the Deputy Conservator of Forest to all the lease holders of the mining leases and Corrigendum dated 22/10/2008 stating that rate of tax should be read as 12% instead of 8% by treating iron ore and manganese ore as raw materials and the buyers being industrialists, the same came within the purview of sub- section (2) of Section 98-A of the Act, were stayed.

(ii) In W.P.No.13595/2008 and connected matters, detailed interim orders were passed on 19/8/2009. In interim order dated 19/08/2009, it is recorded as under: “Heard at length. The challenge in this writ petition is the notification dated 16.08.2008, amending Section 98-A of Karnataka Forest Act, where-under the lease holders of mines and quarries situated in forest area are also included as bodies notified by the Government under Section 98-A (1) of Karnataka Forest Act.

-: 384 :-

-: 385 :-

Karnataka Forest Act, which falls within the legislative competence of the State.

i) The respondents are at liberty to levy Forest Development Tax as proposed in the impugned notification.

ii) However, the demand shall be restricted only to 50% Forest Development Tax levied as an interim arrangement pending disposal of the writ petition.

iii) This order shall have effect from the date of publication of notification.

-: 386 :-

iv) The respondent shall give maximum time of three months to pay arrears of 50% of tax levied for the period from 27/08/2008 till 27/05/2009.”

(iii) On 5.4.2010, the following order was passed: "2. These writ petitions are filed challenging the notification dated 16/08/2008 amending Section 98-A of Karnataka Forest Act imposing Forest Development Tax. This Court, by order dated 19.8.2009 after hearing the learned counsel for the parties, expressed that until a provision of Statute is held unconstitutional, the same is deemed to be valid in law and therefore enforceable and observed that no blanket stay can be granted and interim order was granted subject to the following conditions: “i) The respondents are at liberty to levy Forest Development Tax as proposed in the impugned notification.

-: 387 :-

ii) However, the demand shall be restricted only to 50% Forest Development Tax levied as an interim arrangement pending disposal of the writ petition.

iii) This order shall have effect from the date of publication of notification.

iv) The respondent shall give maximum time of three months to pay arrears of 50% tax levied for the period from 27.8.2008 till 27.5.2009.”

-: 388 :-

“Learned senior counsel for the petitioner / applicant submits that there is already an application for modification of the impugned order filed before the High Court and the same is pending. We request the High Court to dispose of the same by passing appropriate orders at the earliest atleast within a reasonable period. We are told that the matter is posted on 7.12.2009. We do not express any opinion on merits regarding the same. As the High Court has directed the petitioner to pay 50%, the petitioner may furnish a Bank guarantee for the same and the authorities may consider it as a payment.”

-: 389 :-

be deemed to be payment, the order passed by this Court on 19.8.2009 may be modified.

-: 390 :-

-: 391 :-

leases. Learned Government Advocate submits that the said case pertains to imposition of royalty on the value of the mineral and now tax is imposed on the value of the mineral. However, the question has to be decided on merits at the time of final hearing. At this stage, with regard to the contention of the parties and to safeguard the interest of both the parties, we modify condition No.2 which reads as follows:

ii) However, the demand shall be restricted only to 50% Forest Development Tax levied as an interim arrangement pending disposal of the writ petition.

-: 392 :-

(iv) Subsequently, on 24/09/2010 the following Interim Order was passed:

“The manner of determining payment under Section 98-A of the Karnataka Forest Act, 1963 as per the communication dated 23.8.2008 (Annexure-F) is to be based on the price fixed by the DMG/MML/NMDC. While making the aforesaid payment, pursuant to the impugned demands and in terms of the order dated 05.04.2010, the petitioner shall deposit the amount with reference to the content of iron in the ore being sold by the petitioner. For doing so, while making payment, the petitioner will produce the chemical analysis report procured by the petitioner, at the time of effecting sale thereof, as also the chemical analysis report secured by the purchaser at the time of accepting the iron ore from the petitioner. For future sales, payment shall be

-: 393 :-

based keeping in mind the grade of iron ore hitherto sold by the petitioner subject to filing an undertaking with the competent authority affirming that the iron ore sold is of the same grade. The correctness of the chemical analysis report and the undertaking will however be subject to final determination at the hands of respondents.”

(v) Thereafter, on 07/09/2011, further clarification of order dated 24/9/2010 was made by this Court in W.P.No.2642/2009 in the following terms:

“In all other similar cases, the interim order as was passed on 05.04.2010 in Misc. Writ No.10667/09 in W.P.No.13595/2008 and other connected matters is in operation. This is the only case in the aforesaid bunch of cases, where, a different interim order came to be passed on 20.02.2009. In order to maintain parity and uniformity, we consider it just and appropriate to modify the order earlier passed by this Court on 20.02.2009 to one passed on 05.04.2010 in Misc. Writ No.10667/09 in Writ Petition No.13595/08 and other connected matters.

Needless to

-: 394 :-

mention, that the aforesaid order dated 05.04.2010 has been further clarified by a subsequent order dated 24.09.2010. Accordingly, the interim order dated 05.04.2010 will be read in conjunction with order dated 24.09.2010.”

On a conjoint reading of the interim orders passed in this batch of cases, it becomes clear that the petitioners were directed to deposit 50% of the tax demanded in the following manner: 25% by cash and 25% by bank guarantee. There was an order of stay granted with regard to the balance 50% of the outstanding dues.

(c) In Mafatlal Industries Limited, which is a decision of nine Hon’ble Judges of the Supreme Court, it has been stated that the claims for refund can arise under three broad classes: i) unconstitutional levy - where claims for refund are founded on the ground that the provision of an Act under which the tax was levied is unconstitutional; ii) illegal levy – where claims for refund are founded on the ground that there is misinterpretation/misapplication/

-: 395 :-

erroneous interpretation of an Act and Rules framed thereunder and iii) mistake of law - where claim of refund have founded on the basis of the decision rendered in favour of another assessee holding the levy to be unconstitutional.

According to the Hon’ble Supreme Court, Article 265 of the Constitution, which is declaratory in nature states that “no tax shall be levied or collected except by an authority of law”. This means that the taxes collected contrary to law have to be refunded but the said Article does not by itself deal with validity of a taxing provision. The validity of a taxing provision has to be construed with reference to the other provisions of the Constitution. According to the Hon’ble Supreme Court, various situations may arise wherein claims for refund may be made. One situation is, where, a provision of the Act under which tax is levied is struck down as unconstitutional for transgressing the constitutional limitations. In such a case the levy is an unconstitutional levy according to the

-: 396 :-

Hon’ble Supreme Court. Where a tax is collected by the authorities under the Act by misconstruction or wrong interpretation of the provision with Act, Rules and notifications or by an erroneous determination of the relevant facts i.e., an erroneous finding of fact, it is a case of an illegal levy. In this class of cases, the claim for refund arises. There is a third situation, where an assessee pays tax either without protest or after registering his protest, it is also his case where he disputes a levy. Such a case may involve interpretation of the provisions of the Act of the Rules and Notifications.

(d) In STO vs. Kanhaiaya Lal Mukundlal Saraf [AIR 1959 SC 135], (Kanhaiaya Lal), it was held that money paid under a mistake of law is recoverable under Section 72 of the Contract Act and that there is no question of estoppel, even if mistake of law is a mistake of parties. The correctness of that decision was considered in Mafatlal Industries Ltd., on four aspects namely, (1) that where the taxes are paid under a mistake of law, the person

-: 397 :-

paying it is entitled to recover the same from the State on establishing a mistake and that this consequence flows from Section 72 of the Contract Act; (2) that it is open to an assessee to claim refund of tax paid by him under orders which have become final – or to reopen the orders which have become final in his own case – on the basis of discovery of a mistake of law based upon the decision of a court in the case of another assessee, regardless of the time-lapse involved and regardless of the fact that the relevant enactment does not provide for such refund or reopening; (3) whether equitable considerations have no place in situations where Section 72 of the Contract Act is applicable, and (4) whether the spending away of the taxes collected by the State is not a good defence to a claim for refund of taxes collected contrary to law. The answers to the respective four aspects are as follows: “i) whether the right to refund of taxes paid under an unconstitutional provision of law is treated as a constitutional right flowing from Article 265 or as a statutory right/equitable right affirmed by Section 72 of the Contract

-: 398 :-

Act, the result is the same – there is no automatic or unconditional right to refund.

ii) An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee’s case, a similar point is decided in favour of the assessee.

iii) that the claim for refund by a person who has passed on the burden of tax to another has nothing to commend itself; not law, not equity and certainly not a shred of justice or morality. In the case of a writ petition under Article 226, it may be noted, there is an additional factor: the power under Article 226 is a discretionary one and will be exercised only in furtherance of interests of justice. This factor too obliges the High Court to enquire and find out whether the petitioner has in fact suffered any loss or prejudice or whether he has passed on the burden. In the latter event, the court will be perfectly justified in refusing to grant relief. The power cannot be exercised to unjustly enrich a person.

-: 399 :-

iv) That from the constitutional angle, the right to refund of tax paid under an unconstitutional provision of law is not an absolute or an unconditional right. Similar is the position even if Article 265 can be invoked – we have held, it cannot be – for claiming refund of taxes collected by misinterpretation or misapplication of a provision of law, rules, notifications or regulation.”

That the defence of spending away the amount of tax collected under an unconstitutional law is not a good defence to a claim for refund by an assessee, were the observations of the Hon’ble Supreme Court .

It was held that Kanhaiayalal was not decided correctly on the aspects referred to supra. In conclusion, the Hon’ble Supreme Court held that while exercising jurisdiction under Art 226 of the Constitution, the High Court would have to have due regard to the legislative intent manifested by the particular Act and power under Article 226 to be exercised to effectuate the regime of law

-: 400 :-

and not for aggravating it. On the doctrine of enrichment it was held as under:

“The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched.”

(e) In Orissa Cement Limited vs. State of Orissa [AIR 1991 SC 1676], it was held that the finding regarding invalidity of the levy need not automatically result in a direction for refund of all collections thereof made earlier. The declaration regarding invalidity of the provision and the determination of the relief that should be granted in consequence thereof are two separate matters

-: 401 :-

and in the latter sphere, the Court has, certain amount of discretion. It is a well settled proposition that it is open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it, in such a way, as to advance the interests of justice. That it is not always possible in all situations to be given a logical and complete effect to a finding; in such a case Court’s direction on exercise of discretion would not violate any fundamental right. Even in the case where there is an illegal exaction, which is sought to be retained by the State, refund is not automatic, but subject to various terms which are imposed on the refund of illegal extraction whether statutory or by exercise of discretion by the Court. In the said case, direction for refund of the amount of tax from the date on which levy was declared unconstitutional, was issued.

(f) In State of M.P. vs. Bhailal Bhai, [AIR 1964 SC 1006], it was held that where sales tax, assessed and paid by the dealer is declared by a competent Court to be

-: 402 :-

invalid in law, the payment of tax already made is one made under a mistake within the meaning of Section 72 of the Contract Act and so the Government, to whom the payment has been made by mistake, must in law, repay. In this respect, the High Court has, in exercise of its jurisdiction under Article 226 of the Constitution of India, power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realized by the Government without the authority of law. But, whether repayment should be ordered in the exercise of this discretion will depend in each case in its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application, were the observations of the Apex Court. Similarly, in Salonah Tea Co. Ltd. and others vs. Superintendent of Taxes, Nowgong and others, [(1988)1 SCC 401], the Hon’ble Supreme Court permitted refund of tax illegally realized. But, in U.P. Pollution Control Board and others vs. Kanoria Industrial Ltd. and another, [(2001) 2 SCC 549], it

-: 403 :-

has been held that it must not be understood, that in all cases, where collection of cess or tax held to be unconstitutional or invalid, refund should necessarily follow. Even in such a situation, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case. In this case, the claim for refund of tax, allowed by the High Court, was confirmed.

(g) On a consideration of the aforesaid aspects, what emerges is the fact that, FDT is an indirect tax. The levy had to be collected inter alia, by the body notified by the State Government from the purchasers of the minerals as a forest produce, to be remitted to the State exchequer. We have already held that notification dated 16/08/2008 is ultra vires Section 98-A of the Act and therefore, the lease holders of mines and quarries in forest areas had no liability to collect the tax from their purchasers at the time of sale of minerals as a forest produce. We hold that the levy on mines and quarry holders by the impugned

-: 404 :-

Notification dated 16/08/2008, is under a mistaken or erroneous understanding of the expression “a body” in Section 98-A of the Act. Therefore, the levy of tax on sales made by them is illegal. Similarly, levy of FDT on purchases made for export purposes and inter-state sales is ultra vires Act 286 of the Constitution and is hence, invalid. However, we have held that the State Legislature had the competence to levy FDT while answering Point Nos.(v) and (vi). Therefore, the levy of FDT in other respects is legal and valid. However, in terms of the interim order, the deposit has been made by the petitioners herein.

(h) As far as the purchasers/traders of minerals as a forest produce are concerned, the impugned notification does not apply to them. Purchasers, who have purchased minerals as a forest produce, either directly from the State Government or from the corporation, owned or controlled by the State Government, such as MML are liable to pay FDT at the time of purchase. But where the purchasers

-: 405 :-

have purchased minerals as a forest produce from mine holders or quarry holders in forest areas, they are not liable to pay FDT. We have also held that the levy of FDT is legal and valid at 8% on the sale consideration. In the circumstances, those petitioners, who are purchasers of the minerals as a forest produce from the State Government or from a corporation, owned or controlled by the State Government are liable to pay tax at 8% of the sale consideration. But they have deposited tax in terms of the interim order passed by this Court. As far as NMDC is concerned, it is neither a State Government entity or a corporation, owned or controlled by the State Government nor is it covered under notification dated 16/08/2008 in view of our answer to Point No.(ii). Therefore, in respect of minerals as a forest produce sold by it, it was not liable to collect the tax from the purchasers.

Keeping the aforesaid classification, the point for consideration is answered in the following manner:

-: 406 :-

(i) In respect of lease holders and quarry holders of minerals from forest area as notification dated 16/08/2008 is held to be ultra vires Section 98-A of the Act, they were/ and are not liable to collect FDT from the purchasers. Therefore, any tax that has been paid or deposited by them either, pursuant to the interim order passed by this Court or otherwise, is liable to be refunded to them in an expeditious manner and at any rate within a period of three months from the date of communication of this order. Also bank guarantees given by them pursuant to the interim orders of this Court are directed to be cancelled and discontinued. However, the validity of notification dated 16/08/2008 is questioned in these writ petitions. There has been uncertainty as to whether the mine holders and lease holders of forest areas were liable to remit the tax collected by them from the purchasers or not. Also, there was no blanket stay order of the said notification granted by this Court. A conditional order of stay of 50% of their liability has been passed by this Court. It is only by this order that it has been declared that levy

-: 407 :-

of FDT is not in accordance with law. We think that in the aforesaid premise, interest of justice would be sub-served by holding that this category of petitioners would not be entitled to any interest on the tax paid or deposited by them, which is directed to be refunded to them. The refund shall be made in an expeditious manner and at any rate, within a period of three months from the date of communication of this order without any interest.

(ii) As far as the petitioners, who are purchasers of minerals as a forest produce are concerned, notification dated 16/08/2008, does not apply to them, nevertheless, they were liable to pay tax if the purchase has been made directly from the State Government or a corporation, owned or controlled by the State Government such as MML, but not from lessees of mining or quarrying areas in the forests. We have upheld the levy of tax in the aforesaid manner and therefore, these petitioners are liable to pay the FDT. Wherever interim orders have been granted to these petitioners, they would stand vacated and

-: 408 :-

the arrears of tax is liable to be paid by them. However, having regard to the interim order passed in the case of these petitioners, also, we deem it appropriate to grant a period of three months from the date of communication of this order for the payment of the balance levy. Also, since the writ petitions have been pending since the year 2008 onwards, and the interim order being in operation till date, we do not think it appropriate to direct payment of any interest on the arrears of tax due to the State Government. The deposit made by these petitioners or the amounts paid by them shall be appropriated by the respondent-department. Wherever bank guarantees have been given by these petitioners and which are in operation shall be invoked by the respondent-department and the amounts shall be appropriated to the State exchequer. We reiterate that the rate of FDT is 8% on the consideration amount.

(iii) As far as the purchasers of ore in e-auction held by the Monitoring Committee, they are not liable to

-: 409 :-

pay Forest Development Tax, if the ore is excavated and sold from the mining lease held either by NMDC or any private lessee. Payment of Forest Development Tax by such purchasers are to be refunded by the Government expeditiously.

If the ore sold in e-auction is excavated by Mysore Minerals Limited or any State owned company or Corporation, the purchasers are liable to pay tax at the rate of 8% of the sale value. They are entitled to refund if payment has been made more than 8% of the sale value.

If the purchasers in e-auction have paid Forest Development Tax at the rate of 12%, they are entitled to refund of 4% of the excess tax paid.

(iv) Wherever the purchases of minerals as a forest produce has been made by the purchasers, for export purposes or for inter-state trade, then those purchasers are not liable to pay FDT even to the State Government or to the corporations, owned or controlled by the State

-: 410 :-

Government from whom the purchases have been made. Having regard to the restriction placed on the State Government under Article 286 of the Constitution, the directions at Sl.No.(i) supra would squarely apply in respect of this category of petitioners.

(19) SUMMARY OF CONCLUSIONS:-

(a) Re: Point No.(i):- It is held that mining or quarrying lease holders, who are extracting minerals in forest areas have the locus standi to file these petitions. It is also held that the petitions filed by them are maintainable.

(b) Re: Point No.(ii):- Having regard to the context in which expression "a body" is used in Section 98-A of the Act, it would mean an artificial person created by a legal authority, such as a corporation, or an aggregate of individuals or groups or a body corporate. Thus, the expression “a body” can

-: 411 :-

never have reference to an individual or a natural person.

The expression “a body” need not be only a public authority or body; even a private body, comprising of natural or juristic persons, as an aggregate, having an independent legal persona, could be referred to as “a body”. Thus, leaseholders of mines and quarries in forest areas, whether as individual persons whether natural or juristic entities, cannot be construed to be “a body”, within the meaning of Section 98-A of the Act.

It is held that Notification dated 16/08/2008 issued by the State Government under Section 98-A of the Act, is contrary to the expression “a body notified by the State Government” and is hence, ultra vires that section. Consequently, lease holders or quarry holders in forest areas are not liable to collect

-: 412 :-

FDT when they dispose minerals as a forest produce by sale or otherwise or even if they use it for captive consumption.

The Notification dated 16/08/2008 and Communications dated 23/08/2008, 12/09/2008 and 22/10/2008 are quashed as far as lease holders or quarry holders in forest areas are concerned. Also, Demand notices issued pursuant to the aforesaid notification and Communications are also quashed as far as they are concerned. The writ petitions filed by the lease holders or quarry holders in forest areas succeed.

(c) Re: Point No.(iii):- It is held that FDT is a tax leviable under Entry 54 List II and it is not a fee within the scope of Entry 47 of List III. FDT being in the nature of a sales tax, following the dictum of the Division Bench in Gurusiddappa, it is held that it is neither

-: 413 :-

compensatory nor regulatory in nature. It is compulsory exaction and not a fee.

(d) Re: Point No.(iv):- As FDT is in the nature of a sales tax on sale of minerals as a forest produce, the levy is not applicable when the sale is made for the purpose of exports or in the course of inter-state trade. In other words, the levy of FDT is subject to Article 286 of the Constitution.

(e) Re: Point No.(v):- It is held that the State Legislature is not denuded of its legislative competence to levy FDT on the disposal of minerals as a forest produce despite a declaration having been made by the Parliament under Section 2 of the MMDR Act. In the context of Entry 54 of List I, it is held that the general power of regulation and control of minerals under MMDR Act does not include the power of taxation. Further, FDT

-: 414 :-

being in the nature of a sales tax, is within the exclusive domain of the State Legislature under Entry 54 List II. That MMDR Act does not provide for any provision with regard to levy of tax on sale of minerals as a forest produce and in the absence of any express provision, such a provision cannot be implied. It is thus held that the State Legislature is fully competent to levy FDT on sale of minerals as a forest produce.

(f) Re: Point No.(vi):- It is held that the F.C.Act, 1980 (Central enactment) and Karnataka Forest Act, 1963 (State enactment) are not in conflict with each other and there is no overlapping of provisions between the two enactments although, both the enactments are relatable to Entry 17-A of List III. Therefore, there is no repugnancy of the State enactment in relation to the Central enactment; neither

-: 415 :-

does the doctrine of occupied field apply in the present case.

(g) Further, E.P.Act is enacted by virtue of the residuary clause in Entry 97 of List I whereas, Karnataka Forest Act, 1963 was enacted when the subject forest was in List II and the said subject now being enumerated in List III, makes no difference. The two enactments being relatable to entries in two different lists, the doctrine of repugnancy and the doctrine of occupied field do not apply.

(h) More over, Indian Forest Act, 1927 which is a pre-constitutional enactment is applicable even after the commencement of the Constitution. But as far as State of Karnataka is concerned, Karnataka Forest Act, 1963 is applicable and prevails over the Indian Forest Act, 1927 as the State enactment has received Presidential assent.

Therefore, despite

-: 416 :-

enforcement of the aforesaid two Central enactments, the State Legislature is not denuded of its power to levy FDT.

(i) Re: Point No.(vii):- It is held that levy of FDT is at the rate of 8% on the disposal of minerals as a forest produce whether by sale or otherwise and not at 12%. Therefore, Communication dated 22/10/2008 is quashed. 8% shall be reckoned on the sale consideration stated in the invoice and not as per the rate stated in Communication dated 12/09/2008, which is also quashed.

(j) In view of the answer given to the aforesaid points, it is held that the purchasers of minerals as a forest produce are liable to pay FDT at 8% on the sale consideration when they have purchased or would purchase from the State Government or from a corporation,

-: 417 :-

owned or controlled by the State Government, such as MML.

(k) The writ petitions filed by the purchasers of minerals as a forest produce from the State Government or a corporation, owned or controlled by the State Government are allowed only in part. But where the purchasers have been made for the purpose of export or inter-state trade, then no FDT is leviable in respect of such sales having regard to Article 286 of the Constitution. Communications dated 23/08/2008, 12/09/2008 and 22/10/2008 are quashed as far as purchasers, who are exporting or who are selling minerals as a forest produce during the course of inter- state sales.

(l) Re: Point No.(viii):- The directions with regard to refund of FDT are as under:-

-: 418 :-

(i) In respect of lease holders and quarry holders of minerals from forest area as notification dated 16/08/2008 is held to be ultra vires Section 98-A of the Act, they were/and are not liable to collect FDT from the purchasers. Therefore, any tax that has been paid or deposited by them either, pursuant to the interim order passed by this Court or otherwise, is liable to be refunded to them in an expeditious manner and at any rate, within a period of three months from the date of communication of this order. Also bank guarantees given by them pursuant to the interim orders of this Court are directed to be cancelled and discontinued. However, the validity of notification dated 16/08/2008 is questioned in these writ petitions. There has been uncertainty as to whether the mine holders and lease holders of forest areas were liable to remit the tax collected by them from

-: 419 :-

the purchasers or not. Also, there was no blanket stay order of the said notification granted by this Court. A conditional order of stay of 50% of their liability has been passed by this Court. It is only by this order that it has been declared that levy of FDT is not in accordance with law. We think that in the aforesaid premise, interest of justice would be sub-served by holding that this category of petitioners would not be entitled to any interest on the tax paid or deposited by them, which is directed to be refunded to them. The refund shall be made in an expeditious manner, and at any rate within a period of three months from the date of communication of this order.

(ii) As far as the petitioners, who are purchasers of minerals as a forest produce are concerned, notification dated 16/08/2008,

-: 420 :-

does not apply to them, nevertheless, they were liable to pay tax if the purchase has been made directly from the State Government or a corporation, owned or controlled by the State Government such as MML, but not from lessees of mining or quarrying areas in the forests. We have upheld the levy of tax in the aforesaid manner and therefore, these petitioners are liable to pay the FDT. Wherever interim orders have been granted to these petitioners, they would stand vacated and the arrears of tax is liable to be paid by them. However, having regard to the interim order passed in the case of these petitioners, also, we deem it appropriate to grant a period of three months from the date of communication of this order for the payment of the balance levy. Also, since the writ petitions have been pending since the year 2008 onwards, and the interim order being in operation till date, we do not

-: 421 :-

think it appropriate to direct payment of any interest on the arrears of tax due to the State Government. The deposit made by these petitioners or the amounts paid by them shall be appropriated by the respondent- department. Wherever bank guarantees have been given by these petitioners and which are in operation shall be invoked by the respondent-department and the amounts shall be appropriated to the State exchequer. We reiterate that the rate of FDT is 8% on the consideration amount. Any tax paid over and above 8% is liable to be refunded.

Wherever the purchases of minerals as a forest produce has been made by the purchasers, for export purposes or for inter- state trade, then those purchasers are not liable to pay FDT even to the State Government or to the corporations, owned or

-: 422 :-

controlled by the State Government from whom the purchases have been made. Having regard to the restriction placed on the State Government under Article 286 of the Constitution, the directions at Sl.No.1 supra would squarely apply in respect of this category of petitioners.

(m) Re: Point No.(ix):-

O R D E R In the result, the following writ petitions filed by lease holders or quarry holders of forest areas, who are not liable to pay FDT succeed in the aforesaid terms:-

Writ Petition Nos.2642/2009, 44793/2013, 13595/2008, 13516/2008, 13654/2008, 13803/2008, 14802/2008, 30927/2008, 30928/2008, 30995/2008, 31128/2008, 31129/2008, 31141/2008,

-: 423 :-

31142/2008, 31143/2008, 31144/2008, 31145/2008, 31146/2008, 31147/2008, 31148/2008, 31149/2008, 31152/2008, 31181/2008, 31183/2008, 31188/2008, 31189/2008, 31191/2008, 31227/2008, 31228/2008, 31234/2008, 31235/2008, 31266/2008, 31327/2008, 31439/2008, 31577/2008, 368/2009, 863/2009, 6721/2009, 10712/2009, 35251/2009, 60230/2009, 15782/2010, 15795/2010, 15809/2010, 15825-15826/2010, 15953/2010, 15954/2010, 15984/2010, 15985/2010, 15990/2010, 15991/2010, 16145/2010, 16144/2010, 17000/2010, 17001/2010, 17002/2010, 17580/2010, 17581/2010, 17582/2010, 17583/2010, 29222/2010, 39190/2010, 9960/2010, 15431/2010, 15432/2010, 2776/2011,

-: 424 :-

31233/2008, 31182/2008, 31184/2008, 31185/2008. Demand Notices, if any, issued by the respondents in respect of the above petitioners are also quashed.

The following writ petitions are partly allowed in the following terms:-

Where the purchase has been made by these petitioners from the State Government or from a Corporation, owned or controlled by the State Government, such as MML, are liable to pay FDT at the rate of 8%. Any tax paid over and above 8% of the sale consideration is liable to be refunded.

Writ Petition Nos.14157/2008, 31229/2008, 31230/2008, 16237/2009, 16147/2010, 17087/2010, 17455/2010, 18500/2010, 18952/2010, 20215/2010, 23901/2010, 32095/2010, 37208/2010,

-: 425 :-

37209/2010, 37210/2010, 545/2011, 7337/2011, 13023/2011, 15686/2011, 15687/2011, 15689/2011, 15691/2011, 15692/2011, 15693/2011.

If, however, any of these writ petitioners have purchased ore from any private lessee or from NMDC, they are not liable to pay Forest Development Tax and are, therefore, entitled for refund of entire tax paid by them.

Parties to bear their respective costs.

Sd/- ACTING CHIEF JUSTICE

Sd/-

JUDGE *msu/s/mvs/pjk