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Judgment
P. R. Ramachandra Menon, CJ
The issues involved in all these cases are connected by a common thread.
Writ Petition No. 2304 of 2003 is taken as the lead case. The prayers are in the following terms:
"(i) to hold that the imposition, levy and demand of Terminal tax by Gram Panchayat, respondent No.1, and the State Government respondent No.2, on clinker carried by air through conveyor belt and by rail is Ultravires the provision of the constitution.
(ii) To declare that the Resolution and notification no. Panchayat/2003/Arasmeta dated 05.07.03 (Annexure P-1) and Notification No. 508/P/22 dated 29.04.03 (Annexure P-2) levying and demanding Terminal tax from the Petitioner Company is void, without jurisdiction, illegal and bad in law. Being ultra_wires to scheduled VII, Union List 1, Entry 89, Constitution of India.
(iii) To issue a writ of certiorari or any other appropriate writ quashing the Resolution and Notification (Annexure P-1 & P-2).
(iv) To restrain respondent No. 1 and 2 from imposing levying, demanding or collecting any terminal tax on clinker carried by the petitioner company by air and railway from the limits of the said Gram Panchayat.
(v) Any other writ order, or direction as this Hon'ble court may consider just and fair in the facts and circumstances of the case may also kindly be passed."
The main ground of challenge as put forth by Shri Ashish Shrivastava, the learned counsel appearing for the Petitioners is that the Respondent-Panchayat has no authority or jurisdiction to levy or demand Terminal tax in respect of the goods carried by the Petitioners through the conveyor belts from the premises directly to the wagon, without suffering any transport through road, and then by rails to the destination.
By virtue of very peculiar nature of operation, the contention is that no power is vested with the State to invoke the jurisdiction under entry No. 56 of List No.II of the 7th Schedule to the Constitution of India and legislate upon the subject, as it is applicable only in respect of conveyance through "roads", whereas the conveyance sought to be effected by the Petitioners is virtually through "air" factory premises to the wagons through conveyor belts and thereafter, by rails.
The power of legislation with reference to the such instances by 'air', by 'sea' or by 'rails' comes exclusively under the domain of the Central Government and as per entry No. 89 in List I of the 7 th schedule to the Constitution of India. It is also pointed out that no provision is made in the budgetary annual accounts for the terminal tax as required under Section 73 and no rules have been framed or notified under sub-Section (2) of Section 77 for imposition of terminal tax, without which the attempt now mooted by the Respondents is not liable to be given effect to.
When the matter is taken up for consideration, it is submitted on the part of the State that the issue is squarely covered by the ruling of the Madhya Pradesh High Court in the matter of Northern Coal Fields Ltd. vs. The State of M.P. and another reported in 2010 (2) MPHT 202, but the same is sought to be distinguished by the learned counsel appearing for the Petitioners for more reason than one. It is brought to the notice of this Court that this issue is now pending consideration before the Apex Court, having raised challenge against the ruling rendered by the Madhya Pradesh High Court as aforesaid. The appeal preferred before the Supreme Court is pending as C.A. No. 82 of 2016.
In the above circumstances, we are of the view that these matters need not be kept pending anymore before this Court and the same could be closed protecting the rights and interest of both the sides, by making it clear that the fate of challenge raised in these proceedings will depend upon the outcome of the verdict to be passed by the Supreme Court in C.A. No. 82 of 2016 as mentioned above. It is also made clear that, if for any reason, a further deliberation at the hands of this Court becomes necessary, it will be open for either side to revive the matter by filing an I.A., as and when necessitated. With the above observation, all these matters stand closed.
The interim order, if any, will continue till the matter gets finalized as above.