ORDER
V.S. Sirpurkar, J.
1. The petitioners herein challenge the levy of the local cess and local cess surcharge on the ground that the said levy was illegal and without any authority.
2. The petitioners were granted licence to remove Aralai, Jelly and sholing stones from Stone Quarry in S.F. No. 28/2 Bit 1, Bit 3 and Bit 2 measuring an extent of 1.62.0, 0.50.5 and 1.01.0 hectares for Faslis 1402 to 1404 respectively. This was in pursuance to an auction held on 8-3-1993. The petitioners remitted the bid amount along with local cess and local cess surcharge. The local cess is in pursuance of the Tamil Nadu Panchayat Act and it is at the rate of 100% while the local cess surcharge is at the rate of 500%. The petitioners challenge the demand and sought for an injunction and the injunction was granted by an order dated 13-7-1993. The claim of the petitioners is more or the less based on the reported ruling in India Cement Limited v. State of Tamil Nadu, , where it is found that Section 115(1) of the Madras Panchayat Act, 1958 was vitiated by the lack of legislative competence on the part of the state Government. The section as it stood then had required the payment of local cess at the rate of 0.45 paise on every rupee of the land revenue payable to the Government in respect of any land for every fasli. An explanation to the said section was added and deemed always to have been incorported by Tamil Nadu Act 18 of 1964 which provided inter alia that in Section 115 and 116 ‘land revenue’ includes Royalty provided that the land revenue remitted shall not be deemed to be land revenue payable for the purpose of this section. It was this levy which was successfully challenged on the ground that in fact this levy could have been only by the parliament and not by the State Government by the impugned provisions Section115 and 116 of Madras Panchayat Act.
3. Learned counsel for the petitioners therefore urges that the levy in this case which was based on Section 115 and 116 was bad. Now, in fact the petitioner has not mentioned Section 115 and 116 of the 1958 Act, but has actually suggested that the levy is as per the Tamil Nadu panchayat. Amendment Act (Act 27 of 1992) which introduced the changes in the rate of the local cess and local cess surcharge.
4. However, there can be no dispute that Section 115 and 116 of the 1958 Act were found to be vitiated on account of the lack of legislative competence on the part of the State of Tamil Nadu. Therefore, any levy under them was bound to be challenged on the basis of the India Cements case. But, the learned Government Pleader brought to my notice the Validation Act. This Validation Act is passed in 1992 and is called “The Cess and Other Taxes on Minerals (Validation) Act, 1992”. Section 2 of this Act reads as under:
“The laws specified in the schedule to this Act shall be and shall be deemed always to have been as valid as if the provisions contained therein relating to cesses or other taxes on minerals had been communicated by the Parliament and such provisions shall be deemed to have remained in force upto the 4th day of April, 1991.”
The Government Pleader then invites my attention to the schedule where the Tamil Nadu Panchayat Act, 1958 which was Act 35 of 1958 is mentioned.
5. Learned Government Pleader therefore argues that this levy was validated by the Parliament by the above mentioned Act. The learned Government Pleader also invites my attention to a reported decision in P. Kannadasan v. State of Tamil Nadu, , and pointed out that the subsequent constitutional challenge to the validation Act has been silenced by the afore mentioned ruling. She therefore contends that the levy which was demanded was well within the competence on account of the subsequent Validation Act No. 16 of 1992 passed by the Parliament. The argument is extremely attractive, however lacks the substance. Unfortunately, for the Government the validation of the Acts is only upto 04-04-1991. In the present enactment of Act 16 of 1992, the Acts have been saved only upto 4-4-1991. The present levy is not, strictly speaking under Act 35 of 1958 which was found to be vitiated on account of the lack of legislative competance. The levy is under Act 27 of 1992 by which the rates were increased to 100% in case of local cess and 500% in case of local cess surcharge. It is therefore clear that this levy cannot be considered to have been saved because the provisions were obviously not saved by the Validation Act 1992 and indeed they could not have been so saved because the levy itself is from 1993 onwards. For this reason, the petitions must succeed and they are accordingly allowed. Rule Nisi is confirmed. Consequently, connected W.M.P. Nos. 19611 to 19613 of 1993 are closed. No costs.