Rabindra Chandra Guha Vs. State of West Bengal and ors. - Court Judgment

Excerpt:
- orderamitava lala, j. 1. while disposing of the writ petition being w.p. 361(w)/99 along with can no. 2931/1999 on 14-12-99, i was pleased to pass the following orders : 'the writ petition was made challenging the rate of royalty from the asansol sub-division brick field owners' association from rs. 10/- to rs. 20/- and thereafter an application was made in this respect challenging the same being can no. 2931/99.2. the matter was heard in the earlier occasion and now it is placed as 'for orders'. 3. the learned counsel appearing on behalf of the petitioners contended that in view of a single bench judgment and order passed in c.o. 6895(w)/90 in respect of birbhurn brick field owners' association that uniform fixation of royalty at a particular rate and without making any classification as.....

Judgment:
ORDER

Amitava Lala, J.

1. While disposing of the writ petition being W.P. 361(W)/99 along with CAN No. 2931/1999 on 14-12-99, I was pleased to pass the following orders :

'The writ petition was made challenging the rate of royalty from the Asansol Sub-Division Brick field Owners' Association from Rs. 10/- to Rs. 20/- and thereafter an application was made in this respect challenging the same being CAN No. 2931/99.

2. The matter was heard in the earlier occasion and now it is placed as 'for orders'.

3. The learned counsel appearing on behalf of the petitioners contended that in view of a single Bench judgment and order passed in C.O. 6895(W)/90 in respect of Birbhurn Brick Field Owners' Association that uniform fixation of royalty at a particular rate and without making any classification as to places and regions of different parts of West Bengal having regard to the market price of the earth of those places, is absolutely unreliable and absurd. The quality of finished bricks depends upon the quality of the earth, so their prices varies according to quality. In this respect the learned single Bench has also followed a decision of the Supreme Court reported in : AIR1997SC128 and thereafter directed the State of West Bengal in exercise of its power to fix the royalty on extraction of the earth clay for manufacturing bricks place wise and region wise to the market price of the earth clay of all the places where bricks are manufactured. The important part of the judgment and order is that after so many observations it is indicated that 'Till then no realisation of royalty shall be made in terms of the impugned notification. So the rate fixing the royalty by the impugned notification is quashed with the direction as above'.

4. It appears that an appeal was preferred in respect of the matter but stay was refused. In such circumstances until and unless the notification is introduced or Appeal Court set aside the order, the authority concerned cannot claim the royalty as they are claiming now.

5. Therefore, both the writ petitions and the application being CAN 2931/99 are disposed of with an order of restraint upon the authority concerned and/or their men, agents and/or assignee permanently from demanding any royalty arrears, advance or current for running the brick fields by the members of the Association and direct to renew the permits of the members of the Association upon submission of 'G' form accompanied with Rs. 50/- only.

6. 'No order is passed as to costs in re-spect of the writ petitions or the application'.

7. It appears that in all cases price of earth was directed to be paid without affording any opportunity of hearing to the petitioners and it appears further that there is no basis for arriving at the said amount.

8. Mr. Sadananda Ganguli, learned counsel appearing in support of the writ petitioners also cited a well-considered single Bench judgment of this Court in the case of State Bank of India v. State of West Bengal, reported in 1979 (1) CLJ 363 : (1979 Tax LR (NOC) 133 (Cal) with other matters wherein a similarly placed situation in respect of the West Bengal Multi-storeyed Building Tax Act, 1975 was considered on the basis of various High. Court judgments and Supreme Court to come to the findings. Mr. Ganguli, learned counsel for the petitioners also cited a judgment of five Judges in the Supreme Court in the case of New Manek Chowk Spg. & Wvg. Mills Co. Ltd. etc. v. Municipal Corporation of the City of Ahmedabad, reported in : [1967]2SCR679 wherein it was held that although the facts are not similarly placed but the principle as laid down without adopting determination of proper value of the different areas when the authority fixed such valuation giving a uniform rate that should be violative of Article 14 of the Constitution, of India, Such references are definitely strengthened the judgment delivered by this Court and the same has been incorporated herein and followed by the Court.

9. In respect of claim for Cess in all cases Mr. Ganguli, learned counsel for the petitioners has drawn my attention to a judgment dated 20th March, 2001 in CR 10041 to 10043(W) of 1980 and the operative part of the said judgment is quoted below :

'It was submitted by the learned counsel for the petitioners that in view of the Mines and Minerals (Regulation and Development) Act, 1957 and in view of the decision reported in : [1991]2SCR105 , the levy of Cess by the State authorities permissible under the Cess Act, 1880 had been taken away. In fact, in the decision mentioned above, the Supreme Court in no uncertain terms held that 'the levy of cess has to be struck down'. Indeed, the facts and circumstances of the case were related to the Orissa Act and since the power to levy of cess had been assumed by a Central Act, I am of the view that the decision relied on by the counsel for the petitioners was on all fours and squarely applied in the present facts and circumstances.

10. For those reasons, and in view of the fact that the levy of cess by the State authorities stands struck down, the notices being Annexure-A, B and E to the petition are quashed. The rules are made absolute'.

11. That apart it is evident from the impugned notice that the amount in respect of cess has not been mentioned.

12. In view of the said circumstances the impugned demand being Notice No. 2448 LR dated 7-8-1984 of the Additional District Magistrate and Collector (LR), Howrah, Annexure-'A' to the writ application is set aside.

13. The writ application is disposed of. The Rule is made absolute. There will be no order as to costs.

14. Let urgent xerox certified copy of this order, if applied for, be given to the learned counsel for the petitioner within 7 days from the date of putting the requisites.