The State Government is not empowered to fix different rates for different minerals under the Cess Act.

SATYESHWAR ROY, J.

1. All these cases were heard together as common questions of law are involved and are being disposed of by this judgment.

2. The petitioners are lessees of different minerals. In C.W.J.C. No. 1210 of 1985(R) and C.W.J.C. No. 1871 of 1986(R) the lease is of Bauxite, in C.W.J.C. No. 734 of 1986(R), the lease is of Kyanite and in C.W.J.C. No. 877 of 1986(R), it is of Copper. The petitioners have challenged the jurisdiction of the State of Bhiar to impose and demand cess on Bauxite, Kyanite and Copper under the amended provisions of the Bengal Cess Act, 1880 (the Cess Act for short) and its jurisdiction to fix different rates at which cess is payable for different minerals. They have also challenged the certificate cases levied against them for recovery of cess at rates notified by the State Government.

3. There was some confusion at the Bar whether the amendment of Cess Act by the Bihar Cess (Amendment) Ordinance 1975 (Bihar Ordinance 209 of 1975) by which some of the provisions of the Cess Act were amended and which were kept in force by repeatedly promulgating it, were permanently incorporated in the Cess Act by an Act of the Legislature. Although Bihar Ordinance 209 of 1975 was given retrospective effect from 1-4-1975, it was promulgated on 2-12-1975. In the Ordinance it was provided that in case of minerals bearing land cess was to be assessed on the basis of royalty and at a rate which shall be determined from time to time by the State Government. The State Government issued notifications under this power and those notifications were kept alive.

4. In the writ petition filed by the Hindustan Copper Limited, there is reference of the Cess Act, the Ordinance and the Bihar Finance Act, 1981, 1982 and 1984. In the other writ petition, there is also reference of the Bihar Cess (Amendment) Act, 1981. We must record that in spite of the fact that there was reference of the Bihar Cess (Amendment) Act, 1981, learned counsel appearing in the two cases made long submission on the supposition that the amendments introduced in the Cess Act by the Ordinances lapsed as it were not placed before the Legislature which has reassembled as provided under Art.213(2) of the Constitution and also because no Act was passed incorporating those amendments. The amendments introduced in the Cess Act by the Ordinances were made permanent by the Bihar Cess (Amendment) Act, 1981 (Cess Amendment Act for short) and was given effect from 1-4-1975. In that view of the matter the submission made on the footing that the notifications cannot be inforced as the Ordinances lapsed need not be gone into.

5. It was submitted by Dr. Pal, learned counsel for the petitioners in C. W. J. C. Nos. 877 and 734 of 1986 (R), that the cess imposed under the Cess Act was a fee as the same is to be utilised for particular purpose as stated in the preamble of the Cess Act. The rate at which the fee is to be charged is disproportionate to the services rendered. It, therefore, could not be sustained. It was also urged that as under Entry 54 of List I to schedule VII of the Constitution appropriate legislation has been made by the Parliament by enacting Mines and Minerals (Regulation and Development) act, 1957 (M and M Act for short), the Bihar Legislature could not have made any legislation with regard to the mines and minerals under Entry 23 of List II of that Schedule. Dr. Pal urged that the question whether the impost under the Cess Act was fee or tax was not required to be decided by this Court in Associated Cement Co. Ltd. V/s. State of Bihar, 1979 Pat LJR 429 as it was conceded in that case that the nature of cess which is to be imposed under the Cess Act was tax and not fee.

6. From perusal of paragraph 8 of judgment of that case it appears that the Bench recorded that it was admitted on all hands that the nature of cess which was to be imposed under the Act was a tax and not fee. But in view of the fact that the vires of Bihar Cess (Amendment) Or