1. Whether the imposition of cess on various minerals including bauxite, coal and other minerals under the Bengal Cess Act, 1880 (Act IX of 1880) (hereinafter called the Cess Act) as amended from time to time, is valid or not, is the question involved in these writ applications.

2. The fact of the matter lies in a very narrow compass: The petitioner of C.W.J.C. No. 581 of 1990(R) is a mining lessee in respect of mineral bauxite. The said mining lease was granted in terms of the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter called as the 1957 Act) and the Mineral Concession Rules, 1960 (hereinafter called as the 1960 Rules).

3. The writ petitioners of some other cases, namely, C.W.J.C. Nos. 368, 369, 370, 371, 372, 373, 374, 377, 378, 389, 376 of 1990(R), 2085 of 1989(R), 1605 and 1604 of 1990(R) are Government companies within the meaning of S. 617 of the Companies Act and mining leases in respect of mineral coal have been granted in their favour. The petitioners of C.W.J.C. No. 1604 of 1990(R) and C.W.J.C. No. 1605 of 1990(R) are purchasers of coal from the Government Companies aforementioned.

4. Admittedly, cess is paid by all the petitioners so far as mining lessees are concerned, cess is payable by them to the State of Bihar either on the basis of royalty or on the basis of the annual value of the mineral bearing land.

5. The other petitioners being purchasers of coal from the Government Companies (lessees) have to pay cess together with the price of the coal.

6. According to the petitioners, the power of the State Government to levy cess on a mineral in terms of the provisions of the Cess Act is ultravires in view of the declaration made by the Parliament as contained in S. 2 of the 1957 Act in terms of Entry 54, List I of the VII Schedule of the Constitution of India.

7. The petitioners in this connection have placed strong reliance upon a recent decision of the Supreme Court in India Cement Ltd. V/s. State of Tamil Nadu, AIR 1990 SC 85: 1990 (Vol. I) SCC 12 and a Full Bench decision of the Madhya Pradesh High Court in M.P. Lime Manufacturers Association V/s. State of Madhya Pradesh, AIR 1989 MP 264 (FB).

8. On the other hand, the contention of the State is that the cess imposed in terms of the Cess Act being a tax on land as envisaged under Entry 49, List II of the VII Schedule to the Constitution of India, the same is valid. In this connection, it has been contended that so far as the Cess Act is concerned, it is not tax on royalty as was in the case of Tamil Nadu Panchayat Act, 1958 which was the subject-matter of decision in the India Cement case, AIR 1990 SC 85 (supra), but is really a tax on land.

9. According to the learned Advocate General, who appeared on behalf of the State, if a power to levy tax is within the competence of the State legislature, the same cannot be declared ultra vires on the ground that the measure to calculate the tax is on the basis of royalty payable or on the value of the mineral. It has been contended that the measure of tax cannot be destructive of the basic characteristics of the tax. In this connection our attention has been drawn to S. 5 of the Cess Act which is the charging section and which provides for levy of cess on all types of land, He submitted that in order to judge the legislative competence for levy of tax, the Court is required only to identify the subject-matter of tax and the same is to be found only in the charging section of any statute and for that purpose it is impermissible to look into any other provisions of the statute. It was also contended that measure of tax on land may be based on annual value of the land or the use to which the land is put. According to him, the measures employed for assessing tax should not be confused with the nature thereof.

10. Learned Advocate General urged that in India Cements case, AIR 1990 SC 85 (supra) the question as to whether the amount of cess can be calculated on the basis of