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PATNA HIGH COURT
V.Ramaswami and Imam JJ.
Hind Constructions Ltd.
Versus
Cess Deputy Collector
Miscellaneous Judicial Case No. 675 of 1954 ;
Decided On : OCTOBER 17, 1955
CESS ACT - SECTION 72 - OCCUPIER - INTERPRETATION - LICENSEES NOT INCLUDED - CONTRACTORS NOT LIABLE TO SUBMIT RETURN OF ANNUAL NET PROFITS - WRIT OF CERTIORARI ISSUED TO QUASH NOTICE UNDER SECTION 72 OF THE CESS ACT (BENGAL ACT 9 OF 1880).
Fact of the Case:
The petitioners, two limited companies, were jointly executing the work of construction of Konar Dam No. 1 in the district of Hazaribagh. The Damo-dar Valley Corporation (the Corporation) was a statutory body incorporated under Central Act 14 of 1948. For the purpose of construction of Konar Dam No. 1, the Government of Bihar acquired lands after issuing declarations under Sec. 6 of Act 1 Of 1394 and Sec.3, Clause 1, of Act 18 of 1885. The petitioners entered into agreement with the Corporation for the construction of Konar Dam No. 1 exclusive of the hydro-electric power plant. In pursuance of these agreements the petitioners executed the work of construction of the Dam and utilised for the work of construction such materials as sand, ballast, stones, stone-chips etc. which were recovered by excavation of the neighbouring lands with the permission of the Corporation. The Cess Deputy Collector of Hazaribagh wrote to the petitioners asking them to send a statement regarding the supply of stone-chips, ballasts and boulders excavated for the years 1649-50 to 1953-54. The petitioners represented to the Cess Deputy Collector that they were not liable for payment of cess and that stone-chips, ballasts and boulders used for the purpose of construction of Konar Dam No. 1 all belonged to the Corporation. In spite of this representation, the Cess Deputy Collector started a proceeding under Section 72 of the Cess Act (Bengal Act 9 of 1880) requiring the petitioners to submit a return of the net annual profits. The petitioners moved the High Court for grant of a writ in the nature of certiorari under Article 226 of the Constitution for the purpose of calling up and quashing the proceedings started by the Cess Deputy Collector of Hazaribagh under Section 72 of the Cess Act (Bengal Act 9 of 1880).
Finding of the Court:
The Court held that the petitioners were not "occupiers" within the meaning of Section 72 of the Cess Act (Bengal Act 9 of 1880) and the proceedings started by the Cess Deputy Collector were illegal and beyond his jurisdiction. The Court further held that the petitioners were not "managers" of the mine or quarry within the meaning of Section 72 of the Cess Act. The Court also held that the petitioners were entitled to the grant of a writ of certiorari.
Issues: Whether the petitioners were "occupiers" within the meaning of Section 72 of the Cess Act (Bengal Act 9 of 1880). Whether the petitioners were "managers" of the mine or quarry within the meaning of Section 72 of the Cess Act. Whether the petitioners were entitled to the grant of a writ of certiorari.
Ratio Decidendi: The Court interpreted the word "occupier" in Section 72 of the Cess Act (Bengal Act 9 of 1880) to mean a lessee who is in possession of the quarry or mine and who is liable to pay rent to the proprietor. The Court held that the petitioners were mere licensees and were not legally in possession of the quarries. The Court also held that the petitioners did not pay any rent to the Corporation for the minerals excavated. Therefore, the Court held that the petitioners were not "occupiers" within the meaning of Section 72 of the Cess Act. The Court also held that the petitioners were not "managers" of the mine or quarry within the meaning of Section 72 of the Cess Act because they did not have control and direction of its working. The Court further held that the petitioners were entitled to the grant of a writ of certiorari because there had been a virtual determination by the Cess Deputy Collector as to the existence of the collateral fact.
Final Decision: The Court allowed the application and issued a writ in the nature of certiorari under Article 226 of the Constitution for quashing the notice under Section 72 of the Cess Act (Bengal Act 9 of 1880) issued by the Cess Deputy Collector of Hazaribagn against the petitioners and all proceedings consequent thereto.
Ramaswami, J.
1. The petitioners are two limited companies, namely, Hind Constructions Limited and Patel Engineering Company Limited, incorporated, under the Indian Companies Act, and jointly executing the work of construction of Konar Dam No. 1 in the district of Hazaribagh. The Damo-dar Valley Corporation (hereinafter called "the Corporation") is a statutory body incorporated under Central Act 14 of 1948. For the purpose of construction of Konar Dam No. 1, the Government of Bihar acquired lands after issuing declarations under Sec. 6 of Act 1 Of 1394 and Sec.3, Clause 1, of Act 18 of 1885. According to the form of declaration title was acquired not only to the surface right but also such part of the mines and minerals like coal, iron-stone, slate etc. which it might be necessary to dig, or carry away, or use in the construction of the Dam. The condition is expressed in negative form in the declaration (Annexure A) :
"Mines of Coal, iron-stone, slate or other minerals lying under the land or any particular portion of the land, except only such parts of the mines and minerals as it may be necessary to dig, or carry away, or use in the construction of the work for the purpose of which the land is being acquired are not needed."
Sec.28 of the Damodar Valley Corporation Act provides that title to all properties acquired and works constructed for the purpose of the Damodar Valley scheme shall vest in the Corporation. The Corporation entered into agreement with the petitioners by two contracts, dated 24-5-1950 and 10-3-1951 for the construction of Konar Dam No. 1 exclusive of the hydro-electric power plant. In pursuance of these agreements the petitioners executed the work of construction of the Dam and utilised for the work of construction such materials as sand, ballast, stones, stone-chips etc. which were recovered by excavation of the neighbouring lands with the permission of the Corporation. On 26-5-1954 the Cess Deputy Collector of Hazaribagh wrote to the petitioners asking them to send a statement regarding the supply of stone-chips, ballasts and boulders excavated for the years 1649-50 to 1953-54.
On 12-6-1954, the petitioners represented to the Cess Deputy Collector that they were not liable for payment of cess and that stone-chips, ballasts and boulders used for the purpose of construction of Konar Dam No. 1 all belonged to the Corporation. In spite of this representation, the Cess Deputy Collector started a proceeding under Section 72 of the Cess Act (Bengal Act 9 of 1880) requiring the petitioners to submit a return of the net annual profits.The Cess Deputy Collector added that if the return was not submitted within the period of two months from the service of notice, the petitioners would be liable to pay penalty of a fine, of Rs. 50.00 for every day after expiry of the period.
2. In these circumstances, the petitioners have moved the High Court for grant of a writ in the nature of certiorari under Article 226 of the Constitution for , the purpose of calling up and quashing the proceedings started by the Cess Deputy Collector of Hazaribagh under Section 72 of the Cess Act (Bengal Act 9 of 1880).
The contention of the petitioners is that they are not owners or managers or occupiers of any mine or quarry within the meaning of Section 72 of the Cess Act, and the Cess Deputy Collector had no jurisdiction to start a proceeding against the petitioners requiring them to submit a return of the net annual profits of the quarry.The case of the petitioners is that they were mere contractors and the notice issued under Section 72 of the Cess Act was illegal and beyond the jurisdiction of the Cess Deputy Collector.
3. Cause has been shown in this case by the learned Government Advocate on behalf of respondents 1 to 3 including the State of Eihar and Mr. Baldeva Sahay on behalf of respondent 4, the Damodar Valley Corporation.
4. The main question presented for determination in this case is whether the petitioners are "occupi
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