DEBASIS SINGH Vs. STATE

JUDGEMENT

(1.) Petitioner is a lessee in respect of 96 hectares of land for period 1989-90 to 1993-94 in river Brahmani in village Gengutia under the provisions of the Orissa Minor Minerals Concession Rules, 1983. Under the terms of the agreement, the royalty had been fixed at Rs. 75,255/- per annum which was to be paid in advance by the lessee every year. The petitioner was further liable to pay the surface rent of Rs. 887/- and cess of Rs. 887/- every year. While the petitioner was continuing as a lessee under the aforesaid terms and agreement, opposite party No. 2 by letter dated 2-2-1990 demanded payment of cess at the rate of Rs. 13,858/- in place of the contractual rate of Rs. 887/- per year and the notice demanding the same has been annexed as Annexure-2. The petitioner had to pay the said amount under pressure. The Government of Orissa framed the Orissa Minor Mineral Concession Rules, 1990, which came into force with effect from 29-8-1990 and under Schedule I of the said Rules, royalty for sand has been fixed at the rate of Rs. 15/- per cubic metre in place of Rs. 1.50 per tonne which has been fixed under the Rules of 1983. Opposite party No. 2 vide letter dated 1-1-1991 intimated the petitioner that royalty for petitioner had been fixed at the rate of Rs. 3,13,989/- per year and, therefore, the petitioner was called upon to pay the balance amount of Rs. 1,31,659/- for the year 1990-91 towards the arrear royalty and it was further stated that if the royalty was not paid, then the lease would be cancelled. The said order of opposite party No. 2 has been annexed as Annexure-3. The petitioner, therefore, has approached this Court to quash Annexures 2 and 3 and has further prayed for refund of the enhanced amount of cess which the petitioner has paid already.

(2.) Opposite party No. 2 has filed a counter-affidavit and the stand taken in the counter-affidavit is that the Cess Act having been amended in 1989 and the said amended provisions having come into force with effect from 6-10-1989, the petitioner is liable to pay the enhanced amount of cess as provided under the Orissa Cess Act and, therefore, there has been no infirmity in making the demand under Annexure 2. So far as the enhancement of royalty is concerned, the stand of opposite party No. 2 is that in accordance with the conditions of lease deed contained in Part VI of the agreement, the lessee is liable to pay royalty at the rates specified by the Government from time to time and since the Minor Mineral Concession Rules of 1983 were repealed and replaced by the Rules of 1990, with effect from the date the new Rules came into force, the petitioner lessee is liable to pay in accordance with the Schedule contained in the new Rules and Annexure 3 has been issued in accordance with the same. The Rules have not been applied retrospectively, but prospectively from the date the Rules came into force and, therefore, there is no illegality under Annexure 3.

(3.) So far as the demand of enhanced cess under Annexure 2 is concerned, the matter is concluded by the decision of the Supreme Court in the case of M/s. Orissa Cements Limited v. State of Orissa, AIR 1991 SC 1676, wherein the Supreme Court has struck down the amended provisions of Ss. 5, 6 and 7 of the Orissa Cess Act as ultra vires and has affirmed the decision of this Court. In view of the aforesaid decision of the Supreme Court, the demand made under Annexure 2 is without jurisdiction and opposite party No. 2 is not entitled to make any demand under the amended provisions of the Orissa Cess Act. Consequently, the demand under Annexure 2 is quashed. The petitioner has prayed for refund of the amount which he has paid pursuant to the demand under Annexure 2. Annexure 2 is dated 2-2-1990. Though the petitioner has averred that the amount demanded under Annexure 2 has been paid, but the date of payment has not been indicated. The Supreme Court in the Orissa Cements case (referred to supra) considering the question of refund held that even though the levy of cess was unconstitutional, but there shall be no direction to refund to the assessee of any amount of cess collected until the date on which the levy in question has been declared unconstitutional and is respect of Orissa, the relevant date would be 22-12-1989, the date when the Orissa High Court declared the provisions to be ultra vires. Since the petitioner has paid the amount under Annexure 2 subsequent to the said date, he is entitled to refund of the amount paid under Annexure 2. We would accordingly call upon opposite party No. 2 to refund the cess collected from the petitioner pursuant to the demand made under Annexure 2.