TaxTMI 
TaxTMI 
TaxTMI 
2024 (1) TMI 878
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....es, Mr. Geetesh R. Shetye, Ms. Sapna Mordekar, Mr. Shubham Priolkar, Mr. Shivdutt P. Munj, Mr. Deep D. Shirodkar, Ms. Sulekha Kamat, Mr. Tukaram Gawas, Mr. Prashil Arolkar, Additional Government Advocates for the Respondents State in all Writ Petitions. JUDGMENT (PER G. S. KULKARNI, J.) (A) Prelude 1. The Goa Rural Improvement and Welfare Cess Act, 2000 (for short 'the Goa Cess Act') enacted with an object to augment revenue for improvement of infrastructure and health, to promote welfare of the people residing in rural areas, being affected by the use of plastics, dumping of garbage and spillage of materials is the subject matter of challenge in this batch of petitions, by the petitioners, who are inter-alia engaged in transportation of iron and coal into the State of Goa from the other States. (B) Challenge 2. The challenge of the petitioners is primarily mounted on the following counts : (i) that the Goa Cess Act imposes an unconstitutional cess; (ii) The levy as imposed is violative of Articles 301, 303, and 304 of the Constitution of India; (iii) the implementation of the Goa Cess Act violates the petitioner's rights under Article 14 of the Constitution of India,....
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....y, the grounds as raised by the petitioners in the present petitions have fallen for consideration of this Court, as according to the petitioners, they were not subject matter of adjudication in the case of Sociedade De Fomento Industrial Pvt. Ltd. (supra). 5. Writ Petition No.244 of 2009 (Sesa Goa Limited & Anr. Vs. State of Goa) is argued as the lead matter. The issues of law as raised in the connected proceedings are not different. Learned Counsel for the parties have also addressed the Court on such common issues of law. Hence, all these petitions are being disposed of by this common judgment. (C) Facts 6. For convenience the facts as pleaded in the lead writ petition can be noted hereunder: The petitioner company is stated to be engaged in the business of mining iron ore, extraction, processing, transportation, and export of iron ore from the State of Goa. It also carries on mining activity in the State of Karnataka and Orissa. It is contended that the mineral ore as also coal brought by the petitioner from the State of Karnataka, is required to be transported through the State of Goa, since Goa has a major port namely the Mormugao Port, from where the mineral ore is expo....
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.... alia making the following substantive prayers:- "(A) That this Hon'ble Court be pleased to issue a Declaration that the Goa Rural Improvement and Welfare Cess Act, 2000; Rules made thereunder and the Notifications issued thereunder are ultra vires the Constitution and is therefore illegal, null and void; (B) That this Hon'ble Court also be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction for striking down the Goa Rural Improvement and Welfare Cess Act, 2000; the Rules made thereunder and the Notifications issued thereunder and/or forebear the Respondent from enforcing the same; (B1) That this Hon'ble Court be pleased to issue a Writ of Certiorari or Writ in the nature of Certiorari or any other appropriate Writ, order or direction calling for the records from the Respondents and upon examining the legality, propriety and reasonability thereof be pleased to quash and set aside the Corrigendum issued vide Notification dated 08/10/2010. (C) In the alternative and without prejudice to Prayer Clauses (A) and (B) above, this Hon'ble Court be pleased to declare that the Notification dated 13/05/2....
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....pleteness, we note such pleadings on behalf of the State. There are about four reply / additional affidavits filed on behalf of the State. 12. The first affidavit is of Mr. Arun Dessai, Director, Department of Transport, Government of Goa dated 28 September 2010. At the outset, the affidavit referring to the decision of the Supreme Court in the case of "State of A.P. Vs. Mc.Dowell & Co." AIR 1996 SC 1627 contends that none of the grounds as urged by the petitioner in assailing the constitutional validity are tenable to strike down the legislation. It is contended that there is neither violation of Article 301 of the Constitution nor there is an infringement of Article 14 or any other constitutional provision. In justifying the legislation it is contended that mining is one of the major industries in the State of Goa. Different ores like manganese and iron ore, which are extracted in Goa are exported by using facilities at the Mormugao Port. In addition to the ores extracted from Goa, the ores from various other places outside Goa, are also exported from the Mormugao port. Such ore is brought into Goa either by road transportation or by railway wagons. It is contended that in the c....
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....y mining activities. It is stated that at the time of the introduction of the bill in the year 2000, it was estimated that the annual revenue to be received would be in the tune of Rs.6 crores (approx.). The affidavit states that in these circumstances, the bill was passed by the Legislative Assembly, which was granted an assent by the Governor of Goa on 29 September 2000. Further the rules under the Goa Cess Act namely the Goa Rural Improvement and Welfare Cess Rules 2001 were framed. It is stated that the Goa Cess Act was accordingly brought into force by a notification dated 23 January 2006, with effect from 1 February 2006. 15. The reply affidavit referring to the provisions of Section 3 of the Goa Cess Act, contends that it provides that there shall be levied and collected from the owner, a cess on all "carrier transporting material." It is stated that "carrier" has been defined under Section 2(a) to mean any mode or conveyance or facility by which material is transported from one place to another, by a mechanical device. It is contended that cess is levied not on the mineral or the ore as contended by the petitioner, it is levied on the carrier, which transports the material....
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....levy of cess is on the carrier, which transports other materials also which are listed in 'Schedule I' of the Goa Cess Act. It is contended that the true nature of the legislation is to levy cess on the carrier for improvement of the infrastructure. It is contended that the legislation is essentially on facets which adversely affect the health of the people residing in rural areas. The entire structure of the Goa Cess Act is with a view to promote the welfare of the people by interalia having an infrastructure improvement. The levy is thus on the carrier alone. The measure of liability is defined in terms of weight of the items/materials as listed in the schedule to the Goa Cess Act. It is contended that, there is thus a clear relationship between the levy of cess on the materials and the criteria for determining the measure of liability. It is contended that the statutory provision for measuring the liability on account of the levy throws sufficient light on the general character of the levy. 17. The reply affidavit further contends that the regulatory measures or measures imposing the levy do not come within the purview of restriction contemplated by Article 301 and such measure....
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....mmon problems caused by the transportation of materials under the Schedule affecting the health of people especially in rural areas, hence the Goa Cess Act provides to remedy such situation by imposing cess to have a system to safeguard and improve the conditions of such affected people. It is next contended that the State has derived its powers under Article 246 of the Constitution and has passed the impugned Act under Entry 6 and 66 of List-II of Schedule VII to the Constitution. It is contended that the Court would be required to apply the doctrine of pith and substance to determine whether the impugned law relates to the particular subject mentioned in List II. It is contended that in substance the Goa Cess Act falls within the State List. There is no encroachment on the Union List in the present case. This affidavit also places on record the data/figures in relation to the expenditure incurred for the various infrastructural facilities provided by the State Government in order to meet the objects of the impugned Act in the rural areas as generated from the Goa Rural Improvement and Welfare Cess and deposited in the Consolidated Fund of the Goa Government. Additional Affidavit....
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....e local bodies, which may be subsumed in the Goods and Services Tax. It is contended that accordingly on recommendation of the GST Council, the Ministry of Finance issued a Notification dated 14 November 2018, notifying the Acts which were subsumed under the GST Act in which the Goa Cess Act in question does not feature, therefore, the Goa Cess Act has not been subsumed by the GST Act. 22. It is on the above backdrop submissions are made on behalf of the learned Senior Counsel appearing for the parties which are as under: (E) Submissions on behalf of the Petitioners 23. Mr. Dhond, learned Senior Counsel appearing for the petitioners in Writ Petition No. 244 of 2009 and Mr. Nadkarni and Mr. Sawant, learned Counsel appearing for the petitioners in Writ Petition No. 474 of 2012 have made the following submissions. 24. It is urged on behalf of the petitioners that the Cess as levied by the Goa Cess Act, is unconstitutional on the following counts: I. At the outset, it is submitted that the decision of the Division Bench in the case Sociedade De Fomento Industrial Pvt.Ltd., Goa (supra) does not foreclose the petitioners' challenge on the grounds as urged as such grounds are expres....
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....ersons on whom the fee is imposed. While there is no requirement that such benefit should be in proportion with the amount of fee collected, if that to be confined to those from whom it is collected, there must be, at the very least, availability of indirect benefit or a general nexus between the persons bearing the burden of levy of fee or the services rendered out of the fee collected. The State has shown neither such indirect benefit nor any nexus whatsoever between the petitioners or the others like the petitioners and the services allegedly rendered from the impugned cess. In supporting such contention, reliance is placed on the decision in Hingir-Rampur Coal Co. Ltd. Vs. State of Orissa AIR 1961 SC 459, Corporation of Calcutta Vs. Liberty Cinema AIR 1965 SC 1107 and State of West Bengal vs. Kesoram Industries Ltd. & Ors. (2004)10 SCC 201. (iii) At least three Constitution Benches of the Supreme Court in Hingir- Rampur Coal Co. Ltd. Vs. State of Orissa (supra), Corporation of Calcutta Vs. Liberty Cinema (supra) and State of West Bengal vs. Kesoram Industries Ltd. & Ors.(supra), have set down these essential characteristics of a fee which are firstly, there must be an element ....
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....ax". Consequently, the State having taken a stand that the impugned Cess is a tax, as opposed to a fee, is bound by the said pleadings. The contention is supported relying on the decision in Nagindas Ramdas v. Dalpatram Ichharam (1974)1SC 242. It is hence, submitted that the impugned Cess is avowedly a tax, and in its application to the Petitioners in this case, is a levy on the consignment of goods in the course of inter-State trade or commerce, for which the State has no legislative competence to impose it. V. Discriminatory On the ground that the impugned cess is discriminatory, the submissions are to the effect that both, as originally enacted and as on date, the impugned Act discriminates between persons who transport the ore which is locally mined, that is where mining-lease royalty is paid to the Government of Goa and those who mine it outside Goa, but transport it into the State of Goa, wherein such royalty is not paid to the Government of Goa. It is submitted that the case of the State that in this there is no discrimination, is misconceived. It is submitted that such distinction makes no difference for the reason that "royalty" is levied on all minerals wherever mined, ....
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....ent of India, to levy and collect the tax. It is also the petitioner's case that all laws relating to tax on services in force in any State, immediately before the implementation of the Constitution (101st Amendment) Act, 2016 would stand subsumed in the GST. The case of the State Government that such subsuming is not automatic and is only required to be made by the GST Council, is also untenable. The petitioner has also contended that Article 246A(2), Article 269 and Article 286 as amended by the Constitution (101st Amendment) Act operate proprio vigore and hence, would not depend on any recommendation by the GST Council. It is also the case of the petitioners that the State's case that the subsuming is restricted to Entries 66 read with Entries 52, 54, 55 and 62 of List II of the Seventh Schedule is affected by the Constitution(101st Amendment) Act, would not assist the State Government. It is submitted that in any case as held by the Supreme Court in Union of India v. Mohit Minerals (P) Ltd., the recommendations of the GST Council are not binding and that the GST regime has subsumed all the indirect taxes. On the above submissions, the writ petitions ought to be allowed. (F) S....
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....h and General Mills Ltd. vs Shambhu Nath Mukherji and ors (1977) 4 SCC 415 (paragraphs 10 to 12); (ii) Tika Ram and ors vs State of Uttar Pradesh and Ors (2009) 10 SCC 689 (paragraphs 68 and 98); (iii) KAIL Ltd. vs Sahebrao Deshmukh Cooperative Bank Ltd. and ors. reported in (2016) SCC OnLine Bom 4471 paras 4, 5 and 6. It is thus submitted that the challenge to the constitutional validity on basis of additional grounds is required to be dismissed. (II) It is submitted that the Goa Cess Act is a fee and therefore cannot be challenged for violation of Part XIII of the Constitution. The reasons being:- a) this Court in Fomento's case has relied upon the ratio of the decision of the Supreme Court in the case State of West Bengal vs Kesoram Industries reported in (2004) 10 SCC 201, by rendering a specific finding that the Goa Cess Act and Rules thereunder can also be justified, as a fee and is relatable to Entry 66 of List II of Schedule VII to the Constitution of India. It is submitted that such finding is specifically found in paragraph 52 read with paragraph 37 of the judgment in Fomento's case in which in paragraphs 140 to 146 the decision of the Supreme Court in Kesoram Ind....
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....ron ore, that is iron ore for which royalty is paid to the State of Goa which attracts nil cess and on the other hand the iron ore coming into Goa from other states for which royalty is not paid to the State of Goa. b) Thus essentially, there is no grievance about either the Act or the Rules thereunder to be discriminatory. The grievance is about exercise of power by the executive in fixing the rates in the Schedule is stated to be arbitrary. Such a ground has not been raised in this Petition at all and therefore the Petition must fail. c) The Goa Cess Act confers powers on the executive to fix rates in the Schedule. This is a piece of delegated legislation. Different rates prescribed with respect to carrier, transportation of ore from outside the State is based on "reasonable classification", which is clear from the following: i) In case of iron ore, a reasonable classification is made on basis of ore mined within the State in respect of which the State of Goa receives royalty and on the other hand the ore mined outside Goa no royalty is received by the State. ii) It is submitted that in the matter of Goa Foundation vs Union of India reported in (2014) 6 SCC 590, the Supre....
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....ss Act is not relatable to any entry regarding trade or commerce. The judgment in the matter of Fomento (supra) upholds the validity of the Act on entries not related to trade and commerce. i) In any case, there is no similar tax in other corresponding States and hence the question of the Goa Cess Act being violative of Article 304 (a) does not arise. j) It is submitted that the Goa Cess Act is not in relation to supply. The word "supply" was considered by the House of Lords in the matter of Regina vs Maginnis, reported in (1987) 2 WLR 765 wherein it is held "the word "supply" in its ordinary natural meaning conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other. It connotes more than the mere transfer of physical control of some chattel or object from one person to another. No one would ordinarily say that to hand over something to a mere custodier was to supply him with it. The additional concept is that to enable the recipient to apply the thing handed over to purposes for which he desires or has duty to apply it". In the present case, the Petitioner is bringing its own ore from Ka....
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....ny provisions of 101st Amendment Act of the Constitution. b) It is submitted in this context reliance placed by the Petitioner on Section 19 of the 101st Amendment Act is misplaced for the following reasons: i) The Goa Cess Act does not levy tax on goods and services and it is not referable to relevant entries. In fact, deletion of some of the entries supports the case of the Respondent in as much as it gives indication in regard to coverage of taxes by GST regime. ii) The Constitution (101st Amendment) Act, 2016, more particularly Section 17 thereof provides for deletion of entries 84, 92 and 92 C of List-Union List and omission of Entry 52 and 55 and substitution of Entry 54 and 62 of the List II -State List. iii) Perusal of the omitted entries prior to substitution in the List-II (State List) reflects that the said entries pertain to supply, sale, manufacturing, entertainment and luxury tax. Thus essentially it can be seen that any tax which would fall under the omitted entries 52 and 55 or entries 54 and 62 of List -II prior to substitution, would be subsumed by the GST. iv) It is submitted that the judgment in Fomento's case in paragraph 37 records that the State has....
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....chment on List-I of the VII schedule of the Constitution would not invalidate the Goa Cess Act. Entries in Lists of Schedule VII of the Constitution must be given wide and broad interpretation while considering legislative competence of the state. It is specifically so in case of taxing statutes. The State has produced data regarding user of additional resources, and this has been noted in paragraph 56 in Fomento's judgment (supra). (b) The Goa Cess Act is not on occupied field of MMDR Act 1957. MMDR Act is not a complete code and occupies a limited field pertinent to development and regulation of mining and the Goa Cess Act does not in any manner overlap the said field. Perusal of the preamble of the Goa Cess Act supports this contention. (c) Levy of Goa Cess is on certain items mentioned in Schedule I of the Goa Cess Act pertaining to carrier transporting material. (d) The judgment of the Supreme Court in Jindal Stainless Ltd. & Anr. Vs. State of Haryana & ors. (2017) 12 SCC 1 is essentially with respect to entry tax in relation to Article 301 to 304 of the Constitution of India. The Goa Cess Act is a fee and not a tax, much less an entry tax. The decision in Jindal Steels (su....
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.... be struck down only if it is found not saved by any of the Clauses (2) to (6) of Article 19 and so on. It was held that no enactment can be struck down by just saying that it is arbitrary or unreasonable. The Supreme Court observed that some or other constitutional infirmity needs to be found, before invalidating an Act, and that an enactment cannot be struck down on the ground that Court thinks it unjustified. It was held that the Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. An enactment cannot be struck down by applying the principles proportionality when its applicability even in administrative law sphere is not fully and finally settled. The Court observed that it is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment, if it thinks it to be unreasonable, unnecessary or unwarranted. These principles have been reiterated by the S....
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....t in the Green Goa Fund and utilized for the purpose of improvement of water supply and roads, as well as, afforestation and control of dust pollution in the region directly affected-by mining activity. It was, therefore, proposed to introduce such Bill for the levy of cess on the carriers which transport certain items like coal, coke, sand, murrum, debris, garbage, mineral water bottles using plastic packaging, iron ore, manganese ore, etc. The statement of object and reasons reads thus: "Statement of Objects and Reasons The cess on transhipment of mineral ore from one mode of surface transport to another at the rate of Rs. 21/- per tonne of ore transported within the State and Rs. 5/- per tonne of ore (including coal) brought into the State for the purpose of shipping has been proposed in the Budget Speech for the year 2000-2001, relating to Goa Fund. The proceeds are proposed to be put in the Green Goa Fund and utilized for the purpose of improvement of water supply and roads,-as well as, afforestation and control of dust pollution in the region directly affected-by mining activity. It is, therefore, proposed to introduce the present Bill for the levy of cess on the carriers....
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....vise the items and the rates of cess by amending Schedule I. Section 4. 'Application of proceeds of cess.- An amount equivalent to the proceeds of cess levied under this Act, reduced by the cost of collection as determined by the Government in the prescribed manner, together with any income from investment of the said amount and any other moneys received by the Government for the purposes of this Act shall, after due appropriation made by the State Legislature by law, be utilized by the Government to meet the expenditure incurred in connection with measures which, in the opinion of the Government, are necessary or expedient to promote the welfare of the people residing in the rural areas affected by the movement of carriers transporting material on public roads or dumping of garbage or use of plastics and in particular:- (a) to defray the cost of measures taken for the benefit of the villagers affected by the transportation of material on public roads, as well as, dumping of garbage, material and plastics; (b) for improvement of public health, the prevention of disease and the provision for improvement of medical facilities; (c) for provision and improvement of water su....
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.... Material Rate 1 Iron ore where royalty is paid to Government Rs.2/- per metric ton 2 Manganese ore where royalty is paid to Government Rs. 2/- per metric ton 3 Bauxite ore where royalty is paid to Government Rs. 2/- per metric to 4 Iron ore where royalty is not paid to Government Rs. 5/- per metric ton 5 Manganese ore where royalty is not paid to Government Rs. 5/- per metric ton 6 Bauxite ore where royalty is not paid to Government Rs. 5/- per metric ton 7 Coal Rs. 5/- per metric ton 8 Coke Rs. 5/- per metric ton 9 Sand Rs. 2/- per cubic meter 10 Murrum Rs. 2/- per cubic meter 11 Debris other than local self Government Authority debris Rs. 2/- per cubic meter 12 Garbage other than local self Government Authority Garbage Rs. 2/- per cubic meter 13 Packaged water supplied in plastic bottles or sachet made up of plastic, sold for human consumption Rs. 0.50 per bottle / packet 13A Inflammable and hazardous materials other than those listed hereinunder:- i) Petrol, diesel and Light Diesel Oil. ii) Aviation Turbine Fuel (ATF). iii) Nafta and Furnace Oil. iv) Kerosene sold through PDS. v) Liquefied Petroleum Gas (....
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....ical facilities; (c) for provision and improvement of water supply; (d) for improvement of public roads and the erection of tree barriers for arresting the dust levels; (e) to meet the allowances, if any, of the members of the Advisory Committee constituted under section 5 of this Act and the salaries and allowances, if any, of the officers appointed under section 6. 5. Advisory Committee.- (1) The Government may constitute an Advisory Committee as it thinks fit to advise the Government on such matters arising out of the administration of this Act as may be referred to it by the Government including matters relating to the amount of cess referred to in section 3. (2) The Advisory Committee shall consist of such number of persons and chosen in such manner as may be prescribed: Provided that the Advisory Committee shall include an equal number of members representing the Government, the owner of carrier and representatives of Zilla Panchayat. (3) The Government shall appoint the Chairman of the Advisory Committee. (4) The term of office of the members of the Advisory Committee, the allowances, if any payable to them, and the manner in which the Advisory Committee shal....
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....ule, for the serial No. 2 and the entries thereof, the following shall be substituted, namely:- "2. South Goa Margao Mormugao Quepem Salcete Mormugao Qepem Sanguem Canacona." This Notification shall come into force with immediate effect. By order and in the name of the Governor of Goa. D. M. Redkar, Under Secretary (Rev-I). Parvorim, 1st December, 2008. 36. During the pendency of the petition, a further notification dated 6 April 2016 came to be issued by the Government of Goa whereby Schedule I in regard to rate qua iron ore, manganese ore and bauxite ore whereby royalty was paid to the Government was amended to provide "Nil" rate of levy. The said notification reads thus:- "Department of Transport Directorate of Transport Notification D.Tpt/EST/2397/2016/1206 Read: Government Notification No.5/4/2000-Tpt/2008/ dated 13-5- 2008, published in the Official Gazette Seies I No. 6 (Extraordinary) dated 13-5-2008. In exercise of the powers conferred by sub-section (2) of section 3 of the Goa Rural Improvement and Welfare Cess Act, 2000 (Act 29 of 2000) (hereinafter called as the "said Act"), and all other powers enabling it in this behalf, the Govern....
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....01 to 304 of the Constitution. In any event, the law in the context of whether in a given situation cess can be categorized as a tax or a fee, is well settled. We discuss the legal position. 39. The Supreme Court in Vijayalashmi Rice Mill and Ors. VS. Commercial Tax Officers, Palako & Ors. (2006) 6 SCC 763 in the context of an issue arising under the Andhra Pradesh Rural Development Act, 1996 which levied cess on purchase of goods, considered the contentions as urged on behalf of the petitioner that there was no quid pro quo in the levy of the cess and hence, it could not be said to be a fee. Rejecting such contention, the Supreme Court held that ordinarily a cess is also a tax, but it is a special kind of tax. It was observed that generally tax raises revenue which can be used generally for any purpose by the State, however, cess is a tax which generates revenue which is utilized for a specific purpose. It was however observed that in the matters as in hand (which were similar to the legislation in question), the nomenclature was not very important and what has to be seen is the nature of the levy. It was observed that what is called a "cess may be in reality a fee" depending on ....
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.... secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered.......... There is no generic difference between a tax and a fee. Both are compulsory exaction of money by public authorities." ... ... ... 21. As already stated above, the concept of fee has undergone a sea change, and hence the writ petition is liable to fail on the mere ground that the writ petition was drafted under a total misconception about the legal position. As already stated above, the concept of fee has undergone a sea change, while the writ petition has been drafted in the light of the old concept of fee and not the new concept which was subsequently developed by the Supreme Court. 22. In Sona Chandi Oal Committee v. State of Maharashtra, AIR (2005) SC 635, this Court observed as under: "The traditional concept of quid pro quo in a fee has undergone considerable transformation. So far as the regulatory fee is concerned, the service to be rendered is not a condition precedent an....
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....as also taken by the Supreme Court in M/s. Kishan Lal Lakhmi Chand & Ors. v. State of Haryana & Ors., [1993] Suppl. 4 SCC 461. 25. Learned counsel for the appellant has relied on the Constitution Bench decision of this Court in Jindal Stainless Ltd. & Anr. v. State of Haryana and Ors., JT (2006) 4 SC 611 and he relied on para 39 of the said judgment which refers to "the principle of equivalence". In our opinion the aforesaid decision cannot be interpreted to mean that the sea change which has taken place in the concept of fee (as noted above) has vanished, and that by this decision the old concept of fee has been restored, and that now it has to be established that the particular individual from whom the fee is being realized must be rendered some specific services. 26. ... .. .. .. .. 27. In our opinion the cess in question is in substance a fee as it is being levied for rendering to the rural public the service of rural development for the purposes stated in para 9 of the Act. Clearly roads, bridges and storage facilities have to be built in rural areas for progress, and naturally this will require generating funds. Thus even if no specific service is rendered to any partic....
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.... in paragraph 22 are relevant which read thus:- "The nature of the levy under Section 22-A of the 2004 Act, in our considered opinion, is not charges or any other consideration for services for the facilities provided by the Airports Authority. This Court has held in Vijayalashmi Rice Mills & Ors. v. CTO, Palakot (2006) 6 SCC 763, that a cess is a tax which generates revenue which is utilized for a specific purpose. The levy under Section 22A though described as fees is really in the nature of a cess or a tax for generating revenue for the specific purposes mentioned in clauses (a), (b) and (c) of Section 22-A." 42. It also needs to be observed that the Division Bench in Sociedade De Fomento Industrial Pvt. Ltd., Goa (supra) also considered the contention of the petitioners therein, that the State cannot levy any fee under Entries 6, 13 and 50 of List II, as it was required to provide some special service to the petitioner, and no such service, much less special service, was provided to the petitioners. The petitioners had also contended that the imposts can be by way of tax or fee, but not both. Considering such contention as raised on behalf of the petitioners the Division Ben....
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....ise revenue for building infrastructure. It is contended that the imposts can be by way of tax or fee, but not both. On the contention based on Entry 66, List II of the Petitioner pertaining power to charge fee, the Petitioners have relied on the decision in Tulloch to contend that upon enactment of the MMDR Act, no matter would be left in the State List for the State Legislature to levy fees. 54. The decision in Tulloch has been directly considered in Kesoram, and it has been held that the State is not denuded of its power. Kesoram has observed thus : "146. As stated earlier also, the impugned cess can be justified as fee as well. The term cess is commonly employed to connote a tax with a purpose or a tax allocated to a particular thing. However, it also means an assessment or levy. Depending on the context and purpose of levy, cess may not be a tax; it may be a fee or fee as well. It is not necessary that the services rendered from out of the fee collected should be directly in proportion with the amount of fee collected. It is equally not necessary that the services rendered by the fee collected should remain confined to the persons from whom the fee has been collected. Avai....
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.... Goa cess Act and the Rules on the ground of legislative competence must fail." (emphasis supplied) 43. It is thus clear that there is no substance in the contention of the petitioner that the Goa Cess Act levies a tax and not a fee. (II) Whether Goa Cess Act is violative of Articles 301, 303 and 304 of the Constitution 44. Now coming to the challenge as raised by the petitioners that the impugned Act is violative of Article 301, 303 and 304 of the Constitution inasmuch as it affects the petitioners' rights of freedom of trade, commerce and intercourse. 45. Such contention as urged on behalf of the petitioners is premised on the ground that the ores as imported by the petitioners from the other States within the State of Goa, being subjected to the levy of cess under the Goa Cess Act, would hinder the free movement of goods between the two States and for such reason, the Goa Cess Act would violate the freedom of trade, commerce and intercourse as provided for under Article 301 of the Constitution. It is the petitioners' case that the Goa Cess Act does not fall in any of the exceptions as enunciated under Article 304(a) and Article 304(b) of the Constitution of India inasmuch a....
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.... the territory of India. 304. Restrictions on trade, commerce and intercourse among States. Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law- (a) impose on goods imported from other States or the Union territories] any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President." 47. A cumulative reading of Articles 301 to 304 of the Constitution would indicate that trade, commerce or intercourse throughout India shall be free, however, which shall be subject to the other provisions of the Constitution as contained in Part XIII. Article 302 recognizes the power of the parliament to impose restriction on trade, commerce and intercourse by enacting law between one State and another or ....
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....3 Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles. 56 Taxes on goods and passengers carried by road or on inland waterways. 66 Fees in respect of any of the matters in this List, but not including fees taken in any Court. 49. As noted above, Goa Cess Act is enacted with the object of augmenting additional revenue for improvement of infrastructure and health with the view to promote welfare of the people residing in the rural areas affected by use of variety of materials which are a source of patent hazard to human health, namely, plastics, dumping of garbage and spillage of materials. Thus, the legislation can be directly related to entry 6 of the State List which provides for public health and sanitation. It can also be related to entry 66 of the State list inasmuch the Goa Cess Act provides for a pecuniary charge imposed by the State of Goa of carrier to meet public needs. It is now well settled that the word "....
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.... Iron ore, where royalty is paid to Government, Manganese ore where royalty is paid to Government, Bauxite ore where royalty is paid to Government, Iron ore where royalty is not paid to Government, Manganese ore where royalty is not paid to Government, Bauxite ore where royalty is not paid to Government, Coal, Coke, Sand, Murrum, Debris, Garbage, Packaged water supplied in plastic bottles or sachet made up of plastic, sold for human consumption. Inflammable and hazardous materials like petrol, diesel and Light Diesel Oil, Aviation Turbine Fuel (ATF), Nafta and Furnace Oil, Kerosene sold through PDS, Liquefied Petroleum Gas, Waste and Pollutant gases including Argon gas, Ammonia, Phosphoric Acid and Sulphuric Acid and other raw material used in the manufacture of Chemical Fertilizers, MS Scrap, MS Ingots, Sponge and Pig Iron, Mineral ore used in the manufacture of Sponge Iron and Pig Iron and MS ingots. Thus, the Schedule covers a wide range of materials for which heavy transportation is required. The petitioners are merely concerned in regard to the iron ore/ores or coal. It is thus seen that what is sought to be included in the canvass of the Act is the massive and/ or mass transp....
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....s sought to be used in the petitioners own units in the State of Goa and aid trade. Thus, such measure which assists freedom of trade and intercourse can in no manner be called to be any restriction on freedom of trade and intercourse. In any event, once the cess is regarded as fee, cess would stand excluded from the purview of Article 304(a), which recognises the legislative authority of the State to enact law to impose tax on goods inter alia imported from other States. As observed by the Division Bench in Sociedade De Fomento Industrial Pvt. Ltd. (supra), the Goa Cess Act would be necessarily required to be attributed to Entries 6 and 66 of State List under VII Schedule to the Constitution levying a fee. We are, therefore, of the clear opinion that Goa Cess Act, imposing a levy of cess in no manner whatsoever amounts to violating the petitioners' right of freedom of trade, commerce and intercourse. Thus, the levy of such cess is certainly beyond the purview of Article 304 read with Clauses (a) and (b) thereof, as we are fully in agreement with the contentions as urged on behalf of the State, that the Goa Cess Act does not impose any restriction on trade, commerce and intercourse....
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....ferring to the observations of the Constitution Bench in Hingir-Rampur Coal Co., Ltd. vs. The State Of Orissa And Others AIR 1961 459, it was observed that the impugned cess can be justified as a fee as well. The following are the observations of the Court: "146. As stated earlier also, the impugned cess can be justified as fee as well. The term cess is commonly employed to connote a tax with a purpose or a tax allocated to a particular thing. However, it also means an assessment or levy. Depending on the context and purpose of levy, cess may not be a tax; it may be a fee or fee as well. It is not necessary that the services rendered from out of the fee collected should be directly in proportion with the amount of fee collected. It is equally not necessary that the services rendered by the fee collected should remain confined to the persons from whom the fee has been collected. Availability of indirect benefit and a general nexus between the persons bearing the burden of levy of fee and the services rendered out of the fee collected is enough to uphold the validity of the fee charged. The levy of the impugned cess can equally be upheld by reference to Entry 66 read with Entry 5 o....
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....ices rendered in the areas which are declared as mining area in the State of Orissa, which was an area of about 3341.79 acres i.e. about 5.5 sq. miles. The Court held that the cess collected under the Act could be spent for improving the communications by constructing good roads and by providing means of transport such as tramways; supply of water and electricity as also to provide for amenities of sanitation and education to the labour force in order to attract workmen to the mining area in question. In such context the Court observed that it was constitutionally impermissible for any State Government to collect any amount which is not strictly of the nature of a fee in the guise of a fee. 57. Although in the context of "entry tax" which is not the legislation in question, the principle of law on the above constitutional provision find consideration in the nine Judges Constitution Bench decision of the Supreme Court in Jindal Stainless Ltd. & Anr. Vs. State of Haryana & Ors. (2017) 12 SCC 1. The Supreme Court in such case was considering the question touching the interpretation of Articles 301 to 307 comprising Part XIII of the Constitution in the context of the State exercising ....
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....d that any and every benefit howsoever remote or distant, would not save the levy from an attack on the ground of violation of Article 301. The majority judgment further observed that the concept of compensatory taxes is not recognised by the Constitution as a tax was a compulsory exaction of money for general public good and eventually meant to serve larger public good and for running the governmental machinery and providing to the people the facilities essential for civilized living, and there is no question of a tax being non-compensatory in character in the broader sense. It was observed that the concept of compensatory tax obliterates the distinction between a tax and a fee. The essential difference between a tax and a fee is that while a tax has no element of quid pro quo, a fee without that element cannot be validly levied. It is in such context examining the provisions of Articles 301, 302, 303 and 304 of the Constitution, the Court examined as to whether Article 304(a) treats taxes as a restriction so that any such levy may fall foul of Article 301. Such question was answered in the negative. The Court observed that Article 304(a) far from treating taxes as a restriction p....
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....OnLine Pat para 33) "33. ... 'Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property to raise money for public purposes.'" Black's Law Dictionary, 7th Edn., p. 1469 defines tax as under: "A monetary charge imposed by Government on persons, entities or property to yield public revenue." If taxes are eventually meant to serve larger public good and for running the governmental machinery and providing to the people the facilities essential for civilised living, there is no question of a tax being non- compensatory in character in the broader sense. 67.2. Secondly, because the concept of compensatory tax obliterates the distinction between a tax and a fee. The essential difference between a tax and a fee is that while a tax has no element of quid pro quo, a fee without that element cannot be validly levied. The difference between a tax and the fee has been examined and elaborated in a long line of decisions of this Court. (See Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 : 1954 ....
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....d above regarding Articles 301, 302, 303 and 304 may be summarized as under: 76.1. Freedom of trade, commerce and intercourse in terms of Article 301 is not absolute but is subject to the provisions of Part XIII. 76.2. Article 302 which appears in Part XIII empowers Parliament to impose restrictions on trade, commerce and intercourse in public interest. 76.3. The restrictions which Parliament may impose in terms of Article 302 cannot however give any preference to one State over another by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule. 76.4. The restriction that Parliament may impose in terms of Article 302 may extend to giving of preference or permitting discrimination between one State over another only if Parliament by law declares that a situation arising out of scarcity of goods warrants such discrimination or preference. 76.5. Article 304(a) recognises the availability of the power to impose taxes on goods imported from other States, the legislative power to do so being found in Articles 245 and 246 of the Constitution. 76.6. Such power to levy taxes is however subject to the condition that similar goods manufacture....
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.... occasions. The earliest of these decisions was rendered in Kathi Raning Rawat v. State of Saurashtra [Kathi Raning Rawat v. State of Saurashtra, (1952) 1 SCC 215 : AIR 1952 SC 123 : 1952 Cri LJ 805] , where a seven-Judge Bench of this Court held that all legislative differentiation is not necessarily discriminatory. Relying upon the meaning of the expression in Oxford Dictionary, Patanjali Sastri, C.J. (as his Lordship then was) explained : (AIR pp. 125-26, para 7) "7. All legislative differentiation is not necessarily discriminatory. In fact, the word "discrimination" does not occur in Article 14. The expression "discriminate against" is used in Article 15(1) and Article 16(2), and it means, according to the Oxford Dictionary, 'to make an adverse distinction with regard to; to distinguish unfavourably from others'. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless i....
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....o Electronics (P) Ltd. v. State of Punjab, (1990) 3 SCC 87 : 1990 SCC (Tax) 327], this Court noted that the differentiation made was supported by reasons. This Court held that if economic unity of India is one of the constitutional aspirations and if attaining and maintaining such unity is a constitutional goal, such unity and objectives can be achieved only if all parts of the country develop equally. There is, if we may say so, with respect considerable merit in that line of reasoning. A State which is economically and industrially backward on account of several factors must have the opportunity and the freedom to pursue and achieve development in a measure equal to other and more fortunate regions of the country which have for historical reasons, developed faster and thereby acquired an edge over its less fortunate country cousins. Economic unity from the point of view of such underdeveloped or developing States will be an illusion if they do not have the opportunity or the legal entitlement to promote industries within their respective territories by granting incentives and exemptions necessary for such growth and development. The argument that power to grant exemption cannot b....
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.... "1159. By majority the Court answers the reference in the following terms: 1159.1. Taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India. The word "free" used in Article 301 does not mean "free from taxation". 1159.2. Only such taxes as are discriminatory in nature are prohibited by Article 304(a). It follows that levy of a non-discriminatory tax would not constitute an infraction of Article 301. 1159.3. Clauses (a) and (b) of Article 304 have to be read disjunctively. 1159.4. A levy that violates Article 304(a) cannot be saved even if the procedure under Article 304(b) or the proviso thereunder is satisfied. 1159.5. The Compensatory Tax Theory evolved in Automobile Transport case [Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, AIR 1962 SC 1406 : (1963) 1 SCR 491] and subsequently modified in Jindal case [Jindal Stainless Ltd. (2) v. State of Haryana, (2006) 7 SCC 241] has no juristic basis and is therefore rejected. 1159.6. The decisions of this Court in Atiabari [Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232 : (1961) 1 SCR 809], Automobile Transport [Automobile Transport (Rajasthan) Ltd. v. State of Ra....
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....ales tax was being levied on 'hides and skins' under the aforesaid Rules. The petitioners contended that the effect of the impugned rule was that the tanned hides or skins imported from outside the State and sold within the State were subject to a higher rate of tax than the tax imposed on hides or skins tanned and sold within the State, inasmuch as sales tax on the imported hides or skins tanned outside the State was on their sale price, while the tax on hides or skins tanned within the State, though ostensibly on their sale price, which was, in view of the proviso to Clause (ii) of sub-rule (2) of Rule 16 and in reality really on the sale price of these hides or skins, when they were purchased in the raw condition which was substantially less than the sale price of tanned hides or skins. It was also contended that such material imported from outside the State after purchase in their raw condition and then tanned inside the State were also subject to higher taxation than hides or skins purchase in the raw condition in the State. It was contended that such discriminatory taxation was said to be offend the provisions of Article 304(a) of the Constitution. It was in such context, the....
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....d to be considered from the normal business or commercial point of view. It was observed that discriminatory treatment in the matter of levying the sales tax on imported lottery tickets which were similar to the ones issued by the State Government so as to hamper free flow of trade, commerce and intercourse was writ large on the face of the impugned Notification and it was violative of Article 301 read with Art. 304(a) of the Constitution. The challenge itself being in the context of levy of sales tax on lottery tickets and bring out discrimination in the price of lottery tickets as available to the purchasers of such tickets, the issues were examined. 68. In so far as the legislation in hand is concerned and considering the view we have taken, in our opinion, the circumstances are totally distinct as what fell for consideration in H. Anraj (supra) in which the Supreme Court reacted to a conclusion that the notifications were discriminatory while upholding the law. In any event the decision in H. Anraj (supra) was overruled by the Supreme Court in Sunrise Associates vs. Govt. of NCT of Delhi & Ors. (2006)5 SCC 603 holding that H. Anraj incorrectly held that sale of a lottery ticke....
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....not be oblivious as to what is sought to be achieved and remedied by the legislation in question. It is well settled that the Court is required to consider the substance of the legislation and more particularly the wisdom of the State Legislature in a social welfare any legislation would intend to achieve. In such context, we may usefully refer to the observations of Justice Krishna Iyer in Martand Diary and Farm vs. Union of India AIR 1975 SC 1492 when His Lordship accepting the arguments on behalf of the Central Government observed that "after all the law is not always logic and taxation considerations may stem from administrative experience and other factors of life and not artistic visualization or neat logic and so literal, though pedestrian interpretation must prevail". These observations are extracted herein bellow:- "3. Fascinated we were by the imaginative and realistic picturisation of the expression 'products sold in sealed containers' projected by Shri S. T. Desai, counsel for the assessee appellant but, on further reflection, we veered round to the view presented by Shri Sanghi, for the state, that after all law is not always logic and taxation considerations m....
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....intaining public health, sanitation and provide for all measures like dispensaries, hospitals etc. as clearly empowered to the State to frame such law under entry 6 of List-2 read with Articles 38, 47, 48A of the Directive Principles of State policy. Once the legislation is traceable under Entry 6 read with Entry 66 of List-II, which provides for fees in respect of any matter in List-2 (except fees taken in any Court) and when such legislation concerns an eminent interest in relation to public health, the Courts are required to be extremely slow to tinker with such legislation, as the direct impact of any interference by the Court would be a casualty to human health and life. (III) Challenge on the ground of Article 14 of the Constitution 75. The petitioners contend that there is a violation of the petitioners rights guaranteed under Article 14 of the Constitution. The reason according to the petitioners being that the impugned cess discriminates between the ore which is locally mined, wherein mining-lease royalty is paid to the Government of Goa and the ore which is mined outside Goa and transport the ore into the State of Goa, in respect of which royalty is not paid to the Gove....
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....regard to consumers of such materials, as we are on the issue of imposition of cess on transportation of such materials, which certainly has caused concern in regard to development and creation of public facilities requiring the State to enact the law in question. In our opinion, on such count itself, the contention of the petitioners on Article 14 ought to miserably fail. 77. In this context we may refer to the decision of the Supreme Court in the case Income Tax Officer, Shilong & Anr. Vs. N. Takim Roy Rymbai Etc. AIR 1976 SC 670 in which the Supreme Court observed that given the legislative competence, the State legislature has ample freedom to select and classify persons, incomes and objects which it would or would not tax. It was observed that so long as the classification made within this wide and flexible range by a taxing statute does not transgress the fundamental principles underlying the doctrine of equality, it is not vulnerable on the ground of discrimination merely because it taxes or exempts from tax some incomes or objects and not others. 78. It is well settled that Article 14 does not forbid reasonable classification of persons, objects and transactions by the le....
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....xus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned." It is clear that Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends. What is necessary in order to pass the test of permissible classification under Article 14 is that the classification must not be "arbitrary, artificial or evasive" but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature. The question to which we must therefore address ourselves is whether the classification made by the Act in the present case satisfies the aforesaid test or it is arbitrary and irrational and hence violative of the equal protection clause in Article 14. ....
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....ed to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events-self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability." The court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry"; "that exact wisdom and nice adaption of remedy are not always possible" and that "judgment is largely a prophecy based on meagre and un-interpreted experience". Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as p....
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....chedule I whereby the rate of Rs. 50/- per metric ton insofar as Item Nos. 7 and 8 of Schedule I was restored in case of coal and coke. Thus, the primary grievance of the petitioners in enhancing the rates to Rs. 250/- per metric ton in respect of coal and coke itself had ceased to subsist. In any case although the petitioner has contended that the petitioner was aggrieved by Notification dated 1 September, 2009, the petitioner had approached this Court by filing Writ Petition on 7 July, 2012 and the petitioner was not immediately aggrieved by Notification dated 1 September, 2009. 80. Be that as it may, as argued by Mr. Nadkarni, the contentions on behalf of the said petitioners are not different from the contentions as urged by Mr. Dhond in the lead petition including the contentions on the impugned Act violating the provisions of Articles 301 and 304(a) of the Constitution as also the Act being violative of Article 14 of the Constitution on the ground that there is no intelligible differentia distincting coal and coke used by industries in the State and outside the State, which we have extensively discussed hereinabove. 81. Insofar as Mr. Nadkarni's reliance on the decision of ....
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....der the notifications as noted above, is to the effect, that the principles of non-discrimination as enshrined under Article 14 would entitle the petitioner for refund of the cess which was paid by the petitioner between the years 2011 to 2014 till the rate was restored to its original position of Rs. 50/- per metric ton in respect of coal and coke. In such context, Mr. Nadkarni has relied on paragraphs 13, 14 and 21 of the said decision. We are afraid that we cannot accept Mr. Nadkarni's contention as in the facts of the present case, the reliance on such decision is not well-founded. We may observe that the principles of law as discussed in the decision on interpretation of Article 14 of the Constitution are salutary, however, for the reasons which we have set out hereinabove, we are not persuaded to accept the petitioner's contention that there was any breach of the principles of equality as enshrined under Article 14 of the Constitution in the State of Goa, exercising powers under Section 3 of the Goa Cess Act in prescribing the rate of cess to be levied of different categories of materials. It is well settled that fixation of rates of cess is within the domain of the rule maki....
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.... taken a decision to subsume the Goa Cess Act under the GST laws. 85. We may also observe that the attempt of the petitioners of micro dissection of the Constitution (101st Amendment) Act, in mounting a challenge to the Goa Cess Act to be violative of the GST regime, is quite surprising. We also find it to be totally unfounded. Such dissection is premised on the ground that the transportation of the ore would amount to a supply in the course of interstate trade and commerce. Once there is already a levy on such supply under the IGST Act, there cannot be a levy on the consignment/transportation. In our opinion, such assertion of the petitioners is unfounded for the reason the Goa Cess Act is certainly not a law which concerns or deals with the supply of goods. Moreover, in raising such contention, the petitioners are encroaching upon the jurisdiction of the GST Council as conferred by Article 279A of the Constitution, in as much as, in the absence of the GST Council refraining from taking a decision to subsume the Goa Cess Act in the GST laws, it would not be correct for the petitioners to assert that the Goa Cess Act would fall within the ambit of the GST laws. Thus, such contenti....
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.... a problem synonymous to the transportation of materials. Environmental pollution including the pollution caused on the land resources are issue of serious concern, with which Governments all over the country are struggling. Such problems are purely human creations resulting in destruction of the natural resources and environment. Large cities are living examples of the damage being caused to the environment by the dust pollution. It may not be out of context for us to refer to a recent order passed by the first Bench of this Court in the case of Suo Motu Public Interest Litigation No. 3 of 2023 (High Court of Judicature at Bombay on its Own Motion Vs. State of Maharashtra) on Mumbai air pollution. The Division Bench in its order dated 6 November 2023, in the context of dust pollution inter alia generated from the transport vehicles, issued directions, the relevant in the present context are noted hereunder: " ....... c) The Municipal Corporations shall ensure that the metal sheets around construction sites are erected of sufficient height to ensure that dust from the construction sites shall not be spread over. d) To separate the dust generated on construction sites, the Mun....
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....prove public health, and make all endeavors to protect and improve the environment, and to protect the fundamental rights of the citizens to have a pollution free environment which would certainly precede commercial interest. Preservation of the natural resources, environment and preventing any damage to it which in a given situation could be irreparable, are subjects which are required to be sensitively handled by the State. At the same time, to cater to human interests in regard to their health and well-being, if the same is being adversely affected by any human activity, also becomes an onerous responsibility of the State, more particularly in balancing the economic interest of the State and its development in today's peculiar times of competition. In the facts of the present case, transportation of the iron ore/materials is certainly part of the business of the Petitioners, it is not in dispute that such transportation is causing environmental issues affecting the health of the citizens by such pollution, then certainly the State was not powerless under the federal structure of the Constitution and the legislative powers as it would wield to enact the legislation of the nature ....