Madhya Pradesh High Court
Proprietor M/S Ashish ... vs Principal Secretary The State Of ... on 11 October, 2023
Author: Vivek Rusia
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W.P. No. 8252/2010
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
WRIT PETITION No. 8252 of 2010
BETWEEN:-
PROPRIETOR M/S ASHISH ENTERPRISES OTHER ORGANIZATION
THRU.PROP.BC.AGRAWAL,MANDI PRANGAN,NEEMUCH (MADHYA
PRADESH)
.....PETITIONER
(SHRI SATISH JAIN, LEARNED COUNSEL FOR THE PETITIONER.)
AND
PRINCIPAL SECRETARY THE STATE OF MADHYA PRADESH
1. GOVT. ENERGY DEPT,VALLABH BHAWAN,BHOPAL (MADHYA
PRADESH)
M.P PASCHIM KSHETRAVIDYUT VITRAN COMPANY LTD TH
2.
CHIEF ELECTRI ENGINEER (MADHYA PRADESH)
EXECUTIVE ENGINEER VIDYUT SURAKSHA AVEN VIDYUT
3.
NIRIKSHAK (MADHYA PRADESH)
EXECUTIVE ENGINEER M.P PASCHCHIM KSHETRA VIDYUT
4.
VITRAN COMPANY LTD (MADHYA PRADESH)
SECRETARY GOVT OF M.P URJA VIBHAG(ENEGY DEPARTMENT)
5.
VALLABH BHAWAN (MADHYA PRADESH)
.....RESPONDENTS
(SHRI KOUSTUBH PATHAK, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE.)
(SHRI ABHISHEK TUGNAWAT, LEARNED COUNSEL FOR THE
RESPONDENTS NO. 2 TO 4.)
Reserved on : 04.09.2023
Pronounced on : 11.10.2023
This petition having been heard and reserved for order, coming
up for pronouncement this day, this Court pronounced the following:
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W.P. No. 8252/2010
ORDER
The petitioner has filed the present petition challenging the order
dated 15.4.2010 passed by respondent No.1 in compliance of the order
dated 6.7.2009 passed by this Court in W.P. No.1640/2007 (M/s.
Ashish Enterprises V/s. State of M.P. & others.)
01. The petitioner-firm is engaged in the Crushing of Stones and for
that purpose, a Stone Crusher is installed by it, at the Industrial Area,
Neemuch. The petitioner also has a mining lease to excavate stones for
crushing. The petitioner-firm obtained a Low-Tension Level Energy
connection from the M. P. State Electricity Board (predecessor of M.P.
Paschim Kshetra Vidyut Vitran Company Limited), respondent No.2. to
run a crushing unit in the Industrial area.
02. The petitioner-firm, is claiming to pay electricity duty at the rate
of 4% of the total energy consumed by it, but, the respondents were
demanding electricity duty at the rate of 40% which is applicable for
the Mini-Mining. According to the petitioner-firm the said tariff of
electricity duty proposed to be charged was contrary to the regulations
framed under Section 3 of the M. P. Electricity Duty (Amendment) Act
1995.
03. In order to avoid the disconnection, the petitioner-firm paid
electricity duty at the rate of 40% but approached Electricity Consumer
Grievances Redressal Forum, Indore by way of a complaint to claim a
refund of the excess amount of electricity duty on the ground that the
Stone Crusher Unit of the petitioner-firm is not situated within the
mining area, but situated in Industrial Area, Neemuch, therefore, the
petitioner-firm is liable to pay electricity duty at the tariff of 4% only.
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W.P. No. 8252/2010
Consequently.
04. Vide an order dated December 21, 2006, the learned Forum
quashed the communication March 31, 2006, issued by the Executive
Engineer, and directed to redetermine as to what was the tariff of
electricity duty payable by the petitioner firm. It appears that, in
pursuance of the aforesaid directions issued by the Forum, the
Executive Engineer issued a communication dated January 24, 2007,
observing that since certain matters' were pending in Courts, therefore,
till the decision of the said cases, no determination could be made by
the Executive Engineer.
05. The petitioner approached this Court raising a challenge to an
order dated December 21, 2006, passed by the Electricity Consumer
Grievance Redressal Forum, Indore, and also raising a challenge to a
communication, dated January 24, 2007, issued by the Executive
Engineer, respondent No.3. by way of the Writ Petition No.1640/2007.
06. The respondents filed the reply contending that the electricity
duty tariff payable by the petitioner-firm was to be determined as per
the judgment of this Court in L.P.A.No. 219/1998, decided on
September 01, 1999. M/s. Stuti Vs. M.P.E.B.
07. Vide order dated 6.7.2007 Writ Petition was disposed of by
observing that the petitioner's crushing unit is situated in the industrial
area, Neemuch, and is not situated within or adjacent to the mining
land. Consequently, it is apparent that the electricity duty payable by
the petitioner-firm is to be determined, treating the said stone crusher
being situated in the land other than the mining land, and as such, the
observations of the Division Bench in M.P. No.673/1993 are not even
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W.P. No. 8252/2010
applicable and relegated the matter to the Principal Secretary, Energy
Department only for a limited purpose for adjudication of the quantum
of electricity duty chargeable from the petitioner-firm. It was made
clear by this court that it would not be open for the said Authority to
enter into the controversy, as to whether the stone crusher of the
petitioner-firm is to be treated within the mining land or not, since
the said stone crusher is concededly situated in industrial area,
Neemuch i.e. outside the mining land.
(Emphasis supplied)
Resultantly the present writ petition was allowed to the extent
that the orders dated December 21, 2006, passed by the Electricity
Consumer Grievances Redressal Forum, Indore and the communication
dated January 24, 2007, issued by the Executive Engineer, respondent
No.3 were set aside.
08. The petitioner submitted a detailed representation dated
18.9.2009 before the Secretary, Urja Vibhag, Bhopal. Vide order dated
15.4.2010 respondent No.1 held that the electricity duty is chargeable
@ 40% in view of the definition of "mines" u/s. 2(1)(j)(x) of the Mines
Act, 1952 read with Section 3-B of M.P. Vidyut Shulk Adhiniyam,
1949 (hereinafter referred to as "the Act of 1949" for short) as amended
in the year 1995. Hence, the present before this Court.
09. Learned counsel appearing for the petitioner submitted that in
the case of Ashish Enterprises (supra), this Court had already restrained
the authority to enter into the controversy, as to whether the stone
crusher of the petitioner-firm is to be treated within the mining land or
not, since the said stone crusher is concededly situated in the industrial
area, Neemuch i.e. outside the mining land. Despite the aforesaid
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W.P. No. 8252/2010
restriction, again the impugned order has been passed ignoring the fact
that the stone crushing unit is situated far away from the mining area.
Hence same is liable to be quashed.
10. The respondents have filed the return justifying the impugned
action in view of the provisions of Section 3(1) Part B Serial No. 3, 4
and 5 of the Act of 1949 (as amended) and Section 2(j)(i)(vi)(x)(xi) of
the Mines Act, 1952, the decision to charge 40% electricity duty from
the petitioner is justified and not liable to be interfered with.
I have heard the learned counsel for the parties and perused the
material available on record.
11. The Full Bench of this Court in the case of Vande Matram Gitti
Nirman V/s. M.P. Poorva Kshetra Vidyut Vitran Co. (W.A.
No.202/2012 decided on 28.2.2020) had already considered similar
questions. Para 2 of the said order is reproduced below :
"2. A Division Bench of this Court while hearing the matters on
12.09.2019, found conflicting observations made by two Division
Bench judgments of Indore Bench of this Court rendered in W.A.
No.140/2011 (State of Madhya Pradesh vs. M/s Stuti and others)
decided on 15.12.2016 (in short "M/s Stuti-1") and LPA
No.247/1998 (M/s Vastu vs. M.P. Electricity Board & others)
decided on 01.06.2004 (for brevity "M/s Vastu-1) and further
noticed that there is lack of detailed discussion in respect of
applicability of the entry relating to units that are not situated in or
adjacent to a Mine. Accordingly, these intra-court appeals have
been placed before the Full Bench in pursuance to an order dated
12.09.2019 passed by the Division Bench framing the following
questions for the opinion of the Larger Bench:-
"(i) Whether the rate of electricity duty, applicable to mines, can be
applied and enforced upon stone crushing units that are not situated
in and adjacent to a mine?"
(ii) Whether the electricity duty applicable to mines can be imposed
upon only those stone crushing units that are also indulging in
mining activities?
(iii) Whether the observations made by the Division Bench of this
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W.P. No. 8252/2010
Court in the case of L.P.A. No.247/1998 (M/s Vastu Vs. M.P.
Electricity Board and others) or the decision rendered n the case
of State of Madhya Pradesh Vs. M/s Stuti and others, (W.A.
No.140/2011) lays down the correct law?
(iv) Any other issue arising out of the dispute relating to the
determination of the rate of electricity duty to be imposed upon the
stone crushing units?"
12. After considering all the judgments, the Full Bench held that the
petitioner though not mine-owner having the stone crushing unit at a
place not adjacent or not in mine premises where the mines are situated
being covered by the definition of "mines" under the Act of 1949 and
liable to pay the electricity duty applicable to the mines, does not lay
the correct law and thus, overruled in the judgment passed in the case
of Stuti-1. The Full Bench has also held that whether the stone crushing
units situated outside the mining area or to be more precise not in or
adjacent to the mine will also be covered by the definition of "mines",
is not the issue decided by Stone Crusher Association. So far as the
cases where the mines and crushing units both are owned by the same
owner are concerned, it is held that the stone crushing unit even though
not occupied by mine-owner or not belonging to mines situated in or
adjacent to the mines and even if situated outside the mines, are
chargeable @ duty as per Entry 3, Part B of the Table appended to
Section 3(1) of the Act of 1949, are not correct enunciation of the law
and thus, overruled, but held that such decision where the rate of duty
as per Entry 4 was held to be applicable to the stone crushing unit
which was occupied by the mine-owner and belonging to the mine-
owner situated in or adjacent to the mine are upheld.
13. After the judgment passed in the case of the petitioner i.e. Ashish
Enterprises (supra) decided on 6.7.2009, the Office of the Chief
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W.P. No. 8252/2010
Engineer, Electricity Safety issued the circular dated 30.3.2010
charging the electricity duty @ 40% irrespective of the fact that the
crushing unit is inside or outside the mines. The Full Bench held that
the said circular dated 30.3.2010 is not the correct interpretation of Part
B of Section 3(1) of the Act of 1949 Act and Section 2(1)(j) of the
Mines Act, 1952. Therefore, in view of the above and according to the
facts of the present case, where admittedly the stone crusher of the
petitioner is not situated in or adjacent to the mines, is not liable to be
charged @ 40%. The definition given in Section 2(j)(xi) of the Mines
Act, 1952 also says that any premises in or adjacent to and belonging
to a mine or any process ancillary to the getting, dressing or operation
for sale of minerals or of coke is being carried on, will be treated as
mine. But, in the present case, the petitioner's crushing unit is not in or
adjacent to any mine belonging to the petitioner. Therefore, it is not an
ancillary process of the mines. Hence, the impugned order is liable to
be set aside.
14. Accordingly, this petition is allowed. The impugned order is
hereby set aside and recovery from the petitioner @ 40% of electricity
duty is also hereby set aside any amount of the duty collected from the
petitioner @ 40% be refunded in 90 days from the date of production
of the certified copy of this order. Rs. 10,000.00 as cost in favour of the
Writ Petitioner is also awarded.
( VIVEK RUSIA )
JUDGE
Alok/-
Digitally signed by ALOK GARGAV
Date: 2023.10.12 17:03:26 +05'30'
