JUDGMENT : S.K. Jha, J. In this batch of seven applications under Articles 226 and 227 of the Constitution are involved more or less common questions of law. Hence, this common JUDGMENT :. 2. The petitioners have challenged the vires of the Cess Act, 1880 (Bengal Act 9 of 1880), (hereinafter referred to as “the Act"), after its amendment by the Bihar Cess (Amendment) Ordinance; 1975 (Bihar Ordinance No. 209 of 1975, (hereinafter referred to as of the Ordinance"). A discordant note has been struck by the learned counsel for different sets of petitioners in attacking the validity of the impugned Ordinance. While one set of petitioners led by M/s. Balbhadra Prasad Singh challenged the validity of the Ordinance as entrenching upon the legislative field assigned exclusively to the Union Parliament under Entry 82 of List I of the Seventh Schedule to the Constitution, the other set led by Mr. Basudeva Prasad, did not agree to attack the validity of the impugned Ordinance on the ground of encroaching upon the legislative field of the Union Parliament, but as being violative of the fundamental rights as enshrined in the Constitution under Articles 14, 19(1)(g) and 31 of Part III and as also infringing or restricting the right of trade and commerce attracting the inhibition of Article 301 read with the proviso to Clause (b) of Article 304 of the Constitution. 3. I propose to deal first with the primary contention of learned counsel for the petitions to the effect that the impugned Ordinance is beyond the legislative competence of the State Legislature as it seeks to impose tax on Income-a field assigned exclusively to the Union Parliament under Entry 82 of List I of the Seventh Schedule. 4. The Act, on the admitted case of the parties, was made applicable in the State of Bihar long time back. The question of attacking the vires of the Act, which was a pre-Constitution enactment, did not arise at any time prior to the amending Ordinance, since the provisions were well protected by Article 277 of the Constitution. The impugned Ordinance although promulgated on the 2nd of December 1975 was made retrospectively effective from the 1st or April 1975. The question of attacking the vires of the Act, which was a pre-Constitution enactment, did not arise at any time prior to the amending Ordinance, since the provisions were well protected by Article 277 of the Constitution. The impugned Ordinance although promulgated on the 2nd of December 1975 was made retrospectively effective from the 1st or April 1975. In judging the true meaning and effect of the amendment, I think, we can understand the true meaning and effect thereof if we bear in mind the state of the law, which it proposed to amend. It is necessary; therefore, to take a wider survey and then, I think, the meaning of the enactment shall become plain enough. 5. The Act in un-amended form was an Act consolidating the law relating to rating for the construction, charges and maintenance of district communications and other works or public utility, and all provincial public works as the preamble of the Act enacts. Section 5 of the Act was the charging Section and it provided that all immovable property situate in any district or a part of the district except as otherwise provided in Section 2 of the Act, shall be liable to the payment of a local cess. For all practical purposes the exception provided in Section 2 is immaterial for the instant cases. Section 5-A of the Act conferred power on the State Government to declare coal mine or coal quarry to be a notified mine. Section 6 of the Act dealt with the mode of assessment of cess and prescribed that the local cess shall be assessed on the annual value of lands and until provision to the contrary is made by the parliament on the annual net profits from mines and quarries, other than notified mines and from tramways, railways and other immovable property ascertained respectively as prescribed in the Act. The pate at which the local cess was to be levied for each year was in the case of the annual net profits, one anna on each rupee of such profits and in the case of annual value of lands such rate was to be determined for such year in the manner prescribed in the Act with a proviso added thereto that the rate at which the local cess should be levied for anyone year on the annual value of lands was not to be less than the rate of one anna and six pies or more than the rate of two annas on each rupee of such annual value. Section 6-A provided for assessment of cess on notified mines and Section 6-B specified the late of cess thereon. Section 9 of the Act provided for disbursement of proceeds of cess. It is worthwhile to quote Section 9 of the Act as it stood before the amendment: “9. Application of proceeds of cess. Section 6-A provided for assessment of cess on notified mines and Section 6-B specified the late of cess thereon. Section 9 of the Act provided for disbursement of proceeds of cess. It is worthwhile to quote Section 9 of the Act as it stood before the amendment: “9. Application of proceeds of cess. The proceeds of the local cess in each district and all sums levied or recovered as interest or otherwise in respect thereof shall be paid into the District Fund of the District: Provided that where under the provisions of Sub-section (1) (a) of Section 6 of the Bihar and Orrissa Local Self Government Act of 1885, a local area comprised in a district (hereinafter referred to in this section as the original districts) is declared to be a district for the purposes of the said Act (hereinafter referred to In this section as the newly formed districts), then save as the State Government may, from time to time otherwise direct the proceeds of the local cess paid into the District Fund of the original district shall be apportioned between the original newly formed districts In accordance with such agreement; if any; as may have been arrived at in this matter between the District Board of the two districts or, where no such agreement has been arrived at on the basis of the actual proceeds of the local cess recovered from the respective areas comprised in the said two districts; Provided further notwithstanding anything contained in the Bihar and Orissa Local Self Government Act of 1885 not less than fifty per-centum of the proceeds of the local cess leviable on coal mines and coal quarries paid into the District Fund of the District Board of Manbhum shall be appropriated annually for expenditure in the sub-division of Dhanbad on the objects specified in Section 53 of the Act." The only other provisions of the Act which need to be noticed are Sections 72 and 72A occurring in Chapter V which run as follows :- “72. Notice to return profits. Notice to return profits. : (1) on the commencement of this Act in any district and therefore before the close on each year, the Collector of the district shall cause a notice to be served upon the owner, Chief agent, manager or manager of every mine or quarry other than a notified mine and of every tramway railway and other immovable property not included within the provisions of Chapter II; and not being a tramway or railway on which local cess is not leviable; such notice shall be in the form in Schedule E contained, and shall enquire such owner, chief agent, manager or occupier to lodge in the office such Collector within two months a return of the net annual profits of such property, calculated on the average of the net profits thereof for last three years for which accounts have been made up; (2) Before the close of each year, the Collector of the district shall cause notice to be served upon the owner chief agent, manager or occupier of every notified mine, such notice shall be in the form in Schedule EE contained; and shall require such owner, chief agent, manager or occupier to lodge in the office of the Collector within two months a return showing the annual despatches of coal and coke from such mine calculated on the average of the annual despatches of coal and coke therefrom for the last three years for which accounts have been made up. (3) The Collector may in his discretion extend the time allowed for lodging any return referred to in this section. 72. A Penalty omitting to make return.-(1) any owner, chief agent, manager or occupier who, without sufficient cause, being shown to the satisfaction of the Collector, within or omits to lodge the required return in the office of the Collector. (3) The Collector may in his discretion extend the time allowed for lodging any return referred to in this section. 72. A Penalty omitting to make return.-(1) any owner, chief agent, manager or occupier who, without sufficient cause, being shown to the satisfaction of the Collector, within or omits to lodge the required return in the office of the Collector. within two months from the date of the service upon him of a notice under Section 72, or within any extended time which may have been allowed by the Collector for lodging such return shall be liable to a fine which may extend to fifty rupees for every day after expiration of such time or extended time until such return is furnished or until the annual net profits of the annual dispatches of coal and coke from the property in respect of which the notice has been otherwise ascertained and determined by the Collector as hereinafter provided. (2) The, amount of such fine accruing due from time to time may be levied by the Collector as provided in Section 98 or Section 99, and the fact of an appeal against such fine being pending shall not avail to prevent the levy of any such fine pending the disposal of the appeal, unless the Commissioner otherwise directs. (3) Whenever the amount levied in respect of any such fine exceeds five hundred rupees, the Collector shall report the case specially to the Commissioner; find no further levy for such default shall be made otherwise than by authority of the Commissioner," It is not necessary to refer to any other provision of the Act. 6. By the impugned Ordinance, the material changes that have been brought about are these:- In the interpretation clause formerly which was Section 4 of the Act, there was no definition of the term royalty; whereas by virtue of Section 2 of the Ordinance, in Section of the Act a definition of the term “Royalty" has been added in these terms:- "Royalty" in respect of mines and minerals means a payment made or likely to be made to the owner of mines and minerals for the right of working the same on every ton or value of such produce, and includes payment which Government may demand for the appropriation of the mines and minerals belonging to the Government". Section 5 of the Act has been left Intact, Section 5A of the Act bas been omitted and for the old Section 6, the following Section 6 has been substituted by Section 4 of the Ordinance impugned :- “6. Cess how to be assessed:- The local cess shall be assessed on the annual value of lands and until provision to the contrary is made by the parliament, on the royalty of mines and quarries sale value of the other immovable properties including forest produce and annual net profits from tramways and railways ascertained respectively as prescribed in this Act and the rate at which the local cess shall be levied for each year shall be- (a) in the case of royalty the rate will be determined by Government from time to time but it will not exceed the amount of loyalty, (b) in the case of such annual net profits, fifteen paise on each rupee of such profits, (c) in the case of annual value of lands, twenty paise per rupee of the annual value; and (d) in the case of sale value of immovable properties including forest produce, the rate will not exceed 10 percent and the State Government may by notification prescribe from time to time the commodities on the sale of which cess would be levied along with the rates at which it would be levied." Sections 6-A and 6-8 have been omitted. For Section 9 of the Act the following Section 9 has been substituted by Section 6 of th6 Ordinance :- “9. Application of proceeds of cess :- The proceeds of the local cess in each district and all sums levied Oil recovered as interest on otherwise in respect thereof, shall be paid into the district fund of the district at such rate as may be determined from time to time by the State; Government subject to the maximum of 20 per cent and remaining amount shall be deposited in the consolidated fund of the State for the construction and maintenance of other works of public utility; provided that where under the provisions of Sub-section (1a) of Section 6 of the Bihar and Orissa Local Self-Government Act of 1885 (Ben. Act III of 1885) a local area comprised in a district (hereinafter referred to in this section as the original district) is declared to be a district for the purposes of the said Act (hereinafter referred to in this section as the newly-formed district), then, save as the Government may from time to time, otherwise direct, the proceeds of the local cess paid into the District Fund of the original district shall be apportioned between the original and the newly formed districts in accordance with such agreement, if any, as may have been arrived at in this matter between the District Boards or Panchayat Samity of the two districts or, where no such agreement has been arrived at, on the basis of the actual proceeds of the local cess recovered from the respective areas comprised in the said two districts." Section 72 of the Act has been substituted by the impugned Ordinance as follows :- "72 (1) With commencement of this Act in any district and thereafter, owner, chief agent, manager, or occupier of every mine or quarry and of every tramway, railway and other immovable property not included in the provision of Chapter II and not being a tramway or railway on which local cess is not leviable, shall file a return or returns in the prescribed form before the Collector within such period as may be prescribed. (2) The Collector may in this discretion extend the time allowed for lodging any return referred to in sub-section (1)." For sub-section (1) of Section 72A of the Act the following sub-section has been substituted by Section 8 of the amending Ordinance :- (1) Any owner, chief agent; manager or occupier who, without sufficient cause being show to the satisfaction of the Collector refuses or omits to lodge the required return in the office of the Collector within the prescribed period within any extended time which may have been allowed by the Collector for lodging return, shall be liable to a fine which may extend to fifty rupees for every day after expiration of such time or extended time until such return is furnished, or until the royalty or sale value of the property in respect of which the notice has been served shall have been otherwise ascertained and determined by the Collector as hereinafter provided." These are all the material changes which have impelled the petitioners to challenge the legality and the validity of the Ordinance. As I have already stated at the outset; it has been contended on behalf of one set of the petitioners that the impugned Ordinance is a colourable piece or legislation, since in the guise of legislating in respect of the subject matter which may be said to fall under one or the other of the relevant entries in List II of the Seventh Schedule, for all practical purposes the State Legislature bas trespassed into a for bidden field by directly or indirectly seeking to tax the income of the lessee of the mines and quarries which is the subject matter of distinct taxation in the parliamentary sphere in Entry 82 of List I of the 7th Schedule. The other; set of argument has already noticed earlier is with regard to the unreasonableness or the restrictions on a lessees’ right to work out of the mines or quarries thereby affecting their right to property, infringing Art. 19(1)(g) and Article 31 of the Constitution on the one hand and crippling the trade and business resulting in an infraction of Article 301 read with Article 304(b) proviso, of the Constitution. In this connection it was further contended that in the absence of the prior sanction of the President of India this could not have been done. In this connection it was further contended that in the absence of the prior sanction of the President of India this could not have been done. It was also argued with some amount of vehemence on behalf of the latter set of the petitioner that the impugned piece of legislation was also violative of the equality clause in Article 14 of the Constitution. 7. I shall first deal with the point with regard to the legislative competence of the State Legislature in ORDER :to find out as to whether in truth and in substance the Act as amended by the Ordinance can be held to be justified under anyone of the entires List II of the Seventh Schedule; or whether the impugned Ordinance seeks to tax the income and thereby encroaches upon the legislative sphere of the Union Parliament. 8. In this connection it was admitted on all hands that the mature of cess which is to be imposed under the Act as amended by the Ordinance is that of a tax and not of a fee. Mr. Balbhadra Prasad Singh, learned counsel for the petitioner in C. W. J. C. nos. 635, 636, 1991 and 2585 of 1976 argued that under; the impugned Ordinance, the subject or object of taxation is the venture and the raising of the lessee of the mines and quarries. Yhe base of the taxation is the royalty and the actual payment by the lessee in consideration of the grant in his favour of the right of mining operations or of the right of mining operations or of the right of enjoyment of the mines as distinct from any transfer of the property in favout of the lessee. In its fiscal aspect in covering governmental expenditure and in its economic aspect of fixing the framework for the realisation of the levy, the statue has its aim to tax the income of the lessee or the benefit that he is driving from his business enterprise as an incident to his right of enjoyment and not of any right in the property. The Ordinance leaves out of consideration the net profit that the mines as property yield to the owner and the occupier and ignores altogether the receipts that the owner gets as his share in the usufruct. This is in sharp contrast to the scheme of the original Act. The Ordinance leaves out of consideration the net profit that the mines as property yield to the owner and the occupier and ignores altogether the receipts that the owner gets as his share in the usufruct. This is in sharp contrast to the scheme of the original Act. In substance, it was argued, the income of the occupant and not the profit from the property is the subject of taxation. Taxation is based on the royalty paid by the occupier to the owner and not the receipt of the royalty paid by the occupier to the owner and not the receipt of the royalty in respect of the property. The burden of the tax is to be exclusively borne by the occupier on account of the income he derives. The part of the profits issuing from the property to the owner remains unaffected as if liberated from the imposition. This can be explained only by holding that the property is not the object of taxation. The provisions of the Ordinance directly affect the income of the lessee. The tax burden is not to be shared between the owner and the occupier. The liability is not joint and several according as the owner holds the property with defined interest and the lessee possesses the right of enjoyment and both accordingly enjoy the usufruct of the property. The tax in the guise of cess aims only on the lessee’s ability to pay and is measured by the ability to pay the royalty in consideration of the income accruing under the adventure of his mining operations. The tax is to conform to and synchronies with the rent or royalty that is paid by the lessee engaged in the business, making it manifest that it is integrally related to his pursuit. There is a sharp contrast between the incidence of the tax under the Ordinance and that under the original act. The tax is to conform to and synchronies with the rent or royalty that is paid by the lessee engaged in the business, making it manifest that it is integrally related to his pursuit. There is a sharp contrast between the incidence of the tax under the Ordinance and that under the original act. The Ordinance relates it to the incident of the operational enterprise; the Act to the net profit s of the property" Under the original Act the incidence of the original tax was specific the levy was based on net profits of the mine and shared and correspondingly borne by the lessor and the lessee in accordance with the specific characteristics and features of the taxing subject or object, which yields the advantage of its ownership in proportion to the rights of the individual holders. Under the Ordinance, on the contrary, the tax has lost its specific characteristics or land tax and assumed the ad valorem aspect being levied on the individual lessee's ability of paying the royalty for enabling himself to raise and win the minerals from the underground for his business. Under the Act; as it originally stood, the property treated as the subject of a bundle or rights was the target of taxation on proportional basis the tax liability and the tax base were fractionalized in accordance with the interests held in the property. Under the Ordinance on the contrary the tax is progressive, regressive or static as the raisings are made and royalties are paid for to market the product. As the level of the business activities. (i. e. the raisings) rises there will be a rise in the amount of royalty and a corresponding increase in collections. The collections depend upon the gains of the venture, regardless of the potentialities of the property. The subject or object of the tax obviously is the business activity-its expansion or reduction in volume yields the fruit. There is a direct nexus between the levy and the contribution made by the business to the State; although, remotely the property may be traced out to have contributed to the stock-in-trade in business. The goal of the Ordinance it was submitted, is not the property, but the productivity and the fruits of enterprise of the individual miner (i. e. the occupier). The goal of the Ordinance it was submitted, is not the property, but the productivity and the fruits of enterprise of the individual miner (i. e. the occupier). The ability to pay and the payment of the tax is made to depend on the personal characteristics and exertions of the lessees and not on any economic evaluation of the property’s worth. 9. In seeking to fortify his submissions to the effect that since there was no proportional incidence of taxation to be borne by the lessee and the lessor, Mr. B. P. Singh pressed upon our attention some passages from Halsbury's Laws of England (3rd Edition) to impress upon us the proposition that in case of a land tax the lessee passes on the liability to the lessee. Reliance In this connection was placed on volume 28, page 379 paragraph 936. The proposition laid down there is that the occupier of lands is liable to land tax, but if he is a cannot he is entitled to deduct out of the rent so much or the cess as the landlord ought to bear and an landlords, whether mediate or immediate, according to their respective Interests must allow such deductions upon receipt of the residue of the rents. Another passage in the same volume page 549 paragraph 1208; which was relied upon says that a tenant of premises who is assessed to Schedule A income tax is in general entitled to deduct the amount of tax actually paid by him from the next rent payable to his landlord. Similarly rents under long leases and mining rents which are chargeable to income tall under Schedule D. are in general subject to deduction of tax. A tenant who has failed to deduct at the appropriate time under a mistake of fact may recover the amount over paid as money had and received. Although the tenant pays the entire land tax in the first instance, he is then entitled to deduct from the rent so much of the tax as the landlord ought to bear, that is, such proportion of the tax as the rent bears to the total annual value at which the premises arc rated for rent tax. Although the tenant pays the entire land tax in the first instance, he is then entitled to deduct from the rent so much of the tax as the landlord ought to bear, that is, such proportion of the tax as the rent bears to the total annual value at which the premises arc rated for rent tax. Then our attention was focused to paragraph 1307 at page 610 where in it has been said that any agreement depriving the tenant of his right to deduct the landlord’s property tax from his rent is void, and in certain other cases the landlord is debarred by statute from shifting a burden, which the legislature has imposed upon him; to the tenant; but in general, where a tax or rent is prima facie to be borne by one party, it is competent for the parties to agree that it shall be borne by the other. Then we are taken to a few paragraphs occurring in volume 20 (i. e. paragraph 11 page 16, paragraph 19 at page 18, paragraphs 80 and 81 at page 51 and paragraph 133 at page 80). Paragraph 11 at page 16 describes Schedule A of the income tax and says-“Schedule A charges the property in all lands, tenements, hereditaments and heritages, with certain exceptions, in the United Kingdom capable of actual occupation. The basis of assessment is the annual value of houses and lands. The tax is popularly known as the landlord’s property tax. It is charged, subject to certain exceptions, on the occupier, who, if a tenant, bas the right of deduction of tax from the next payment of rent” Paragraph 19 at page 18 deals with the basis of assessment in so far as Schedules A and B of Income for the United Kingdom are concerned. Paragraphs 80 and 81 at pages 51 deal with the scope of charge to tax under Schedule A and the meaning of the property. It is said that, “the word “property' is not used in any technical sense, and does mean merely the proprietorship of land in fee simple. It is a comprehensive term, used to express the interests of the various persons (ground landlord, tenant, owner occupier, etc.), In the income arising from lands, tenements, hereditaments and heritages, which income is, for income tax purposes, represented by the annual value computed according to the rules of Schedule A". It is a comprehensive term, used to express the interests of the various persons (ground landlord, tenant, owner occupier, etc.), In the income arising from lands, tenements, hereditaments and heritages, which income is, for income tax purposes, represented by the annual value computed according to the rules of Schedule A". Paragraph 133 at page 80 deals with the deduction of tax by occupier and to all purposes the gist of this paragraph is the same as that of paragraph 936 at page 379 of Volume 23. Having taken us through these excerpts of law in the United Kingdom, learned counsel argued that under the impugned ordinance the amount of so-called cess to be realised from the lessee, which may even reach the limit of one hundred per cent of the royalty; could not even, in part be passed on to the lessor. It could not; therefore, be held that it was a tax or an impost on land. As a necessary corollary, it was argued that it followed that if the amount of cess levied as against the lessee was not a cess on land and thereby not protected under entry 49 of List II of the 7th Schedule, then it could be relatable only to R tax on income under Entry 82 of List I of the said Schedule of the Constitution. I need hardly point out that there is inherent fallacy in the submissions of the learned counsel. The passages from Halsbury's Laws of England to which reference bas been made earlier are of no avail to the petitioners in the instant cases. It is by virtue of the Income Tax Act, 1952 of the United Kingdom, that there is statutory obligation upon the landlords, mediate or immediate, to hear the provisional incidence of taxation which in the first instance is levied and collected from the tenant in occupation of the hereditament. It will be noticed from Section 508(1) of the Income Tax Act 1952 of the United Kingdom that a landlord, who refuses to allow the deduction of tax on payment of rent to him, and production of the receipt for tax is liable to a penalty of Rs. It will be noticed from Section 508(1) of the Income Tax Act 1952 of the United Kingdom that a landlord, who refuses to allow the deduction of tax on payment of rent to him, and production of the receipt for tax is liable to a penalty of Rs. 50 (referred to paragraph 139 at page 83, Volume 20), and it will further be noticed from foot-note(s) at page 379 of Volume 28 that land tax was originally charged upon the persons having or holding lands, but the persons liable in be first instance were the several occupiers of the lands chargeable. It is, therefore; futile to draw any analogy from the Income Tax Act, 1952 of the United Kingdom which fastens the statutory obligation upon a landlord to bear the incidence of taxation initially levied at the hands of the tenants. Merely because under the impugned Ordinance the lessee operating the mines or quarries subjected to the payment of cess cannot pass on any portion of the obligation to the lessor, will not be a pointer to the nature of an imposition. 10. It is well settled that when a question arises as to the precise entry of the legislative power under which the taxing statute has been passed, the subject for enquiry is the pith and substance in the nature of the tax. The legislative competence of a legislature to enact a law is often challenged in a federal or con-federal structure or the Government. The impugned law in such cases can be justified as falling within one or more entries of the relevant legislative lists. It may even be that parts of it may be justified under one entry and parts under another. The Indian Constitution has made taxing powers of the Union and the States mutually exclusive. Some of the difficulties which have arisen in some federal constitutions from overlapping powers of taxation have been sought to be avoided. I must not be misunderstood to mean that in fact there may not arise an overlapping of powers. In law there may not be any overlapping of taxation powers although, in fact, there may be. This is the standing point from which I proceed test the validity of the impugned Ordinance to find out as to whether it can he justified as being within the legislative competence of the State Legislature. 11. In law there may not be any overlapping of taxation powers although, in fact, there may be. This is the standing point from which I proceed test the validity of the impugned Ordinance to find out as to whether it can he justified as being within the legislative competence of the State Legislature. 11. A reference in this connection may be made to some of the decisions of the Supreme Court in the cases of (1) M. P. V. Sundararamier & Co. v. The State of Andhra Pradesh (A. I. R. 1958 S. C. 468), (2) State of Mysore and others v. M/S D. Gawasji & Co. (A. I. R. 1971 S. C. 152) and (3) The Bar Council of Uttar Pradesh v. P. U. P. & another (A. I. R. 1973 S. C. 231). The power to legislate in respect of a matter does not carry with it a power to impose a tax. Although legislature power includes all incidental and subsidiary power, the power to impose a tax is not an incidental and subsidiary power under our Constitution. Since the taxation power of Parliament and the State Legislature is mutually exclusive, Entries 82, 86, 87 and 88 of List I of the Seventh Schedule provide respectively, for taxes on income taxes on the capitol value of the assets, estate duty in respect of property and duties in respect of succession to property excluding agricultural income and agricultural land from the operation of these taxes. Entries 46, 47 or 48 of List n provide for taxes on agricultural income, duties in respect of succession to agricultural land and estate duty in respect of agricultural land. It is nobody's case that the impugned. Ordinance is saved by any of the entries 46, 47 or 48 of List II. Mr. Lal Narain Sinha learned counsel for the State in all these cases submitted that the impugned Ordinance amending the Act fell within the legislative field assigned to the State Legislature under Entry 49 of List II of the Seventh Schedule. Entry 49 vests the State Legislature with the power of imposing taxes on lands and buildings. Mr. Lal Narain Sinha learned counsel for the State in all these cases submitted that the impugned Ordinance amending the Act fell within the legislative field assigned to the State Legislature under Entry 49 of List II of the Seventh Schedule. Entry 49 vests the State Legislature with the power of imposing taxes on lands and buildings. The moot question therefore that falls for our consideration is as to whether the Ordinance can be saved with reference to the legislative field covered by entry 49 of List II or must be dubbed as the petitioners' counsel wants us to do as encroaching upon the sphere of the parliamentary legislation in Entry 82 of List I. 12. Even at the cost of repetition I must emphasise as has many a time been done that whenever such a situation arises for deciding under which precise entry a particular legislation falls the theory of pith and substance bas been evolved by the Courts. If in pith and substance legislation fails within one list or the other, but some portion of the subject matter of that legislation incidentally trenches upon and might come to fall under another list, the Act as a whole would be valid notwithstanding such incidental trenches. Sir Maurice Gwyer, C. J., has Observed in 1940 Federal Court Reports 188 (201):- "It must inevitably happen from time to time that legislation, though purporting to deal with a subject in on list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its "pith and substance", or its “true nature and character", for the purpose of determining whether it is legislation with respect to matters in this list or in that:" It has very often been said in judicial decisions that subjects may seem to overlap and whenever they do, the question may be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. The question of the invasion by the State into the field of competent Union Legislation is an important matter not because the validity of the Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is pith and substance of the impugned Act. The question is not, therefore, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance, of the Act in question is not taxation on land, but fee on income. In each case on has to consider what the substance of the Act is and what effects attribute it to the appropriate list, according to its true character. As was observed by Venkatarama Ayyer, J., speaking for the Court in the case of (4) A. S. Krishna and others V. State of Madras (A. I. R. 1957 S. C. 297) to ascertain the true character of the legislation which falls to be considered in such cases, one must have regard to the enactment as a whole; to Its object and to the scope and effect of its provisions. It would be quite an erroneous approach to the question to view such a. statute not as an organic whole; but as a mere collection of sections, then disintegrate it into parts; examine under what heads of legislation those parts would severally fall end by that process determine what portions thereof fall within one list and what within another list. It is also well settled that it is a consequence of the doctrine of 'pith and substance that once a law in truth and substance falls within a legislative entry, an incidental encroachment on an Entry in another list does not affect its validity. In (5) Gallagher V. Wynn (1937 Appeal Cases 863), the Privy Council held that the impugned Act was in pith and substance an Act to promote the health of the inhabitants of Northern-land and it incidentally affected the trade, but it was not passed in respect of trade. 13. Judged in this light one has to see and identify the subject matter of the tax and such an identification of the subject matter is only to be found in the charging section of any taxing statute. 13. Judged in this light one has to see and identify the subject matter of the tax and such an identification of the subject matter is only to be found in the charging section of any taxing statute. In (6), Provincial Treasurer of Alberta & another V. C. E. Ken & another (193-3 Appeal Cases 710), Lord Thankerton observed thus:- “The identification of the subject-matter of the tax is naturally to be found in the charging section of the statute and it will only be in the case of some ambiguity in the terms of the charging section that recourse to other sections is proper of necessary" This has been the consistent principle followed in construction of taxing statute all alonge as was observed by Sir Fazl Ali, J., in the case of (7) Balla Ram V. The Province of East Punjab [1948 Federal Court Report 207 (224)] :- “In the first place, we have to look into the charging section of the statute, because as was pointed out in provincial Treasurer of Alberta and another V. C. E. Ken and another, “the identification of the subject-matter of the tax is only to be found in that section". In this background of the well settled principle of the construction statutes we have to judge as to whether the Act as it originally stood was seeking to tax land and building or an income and as to whether the amending Ordinance as is suggested by Mr. B. P. Singh learned counsel appearing for some of the petitioners, has encroached upon the original Act as to change the true character of the taxes sought to be Imposed. It will be noticed that Section 5 of the Act is the charging Section which says in unambiguous terms that, from and after the commencement of this Act all immovable property situate therein. . . . shall be liable to the payment of a local cess". It will be noticed that Section 5 of the Act is the charging Section which says in unambiguous terms that, from and after the commencement of this Act all immovable property situate therein. . . . shall be liable to the payment of a local cess". The provisions of the Act fell for consideration in one of the earliest cases of the Calcutta High Court in the case of (8) Manindra Chandra Nandi V. The Secretary of State row India in Council (I. L. R. 34 Calcutta 257 = 5 Calcutta Law Journal 148) from which an appeal was taken to the Privy Council and the Judicial Committee of the Privy Council in the ease of (9) Maharaja Maniadra Chandra Nandi V. The Secretary of State for India in Council (38 Indian Appeals 3l) held that on a true construction of Section 6 of Bengal Act IX of 1880, which merely laid down the mode of assessment of cess under the Act, the term 'annual net profits' has reference to the property and not to the individual and includes the royalty paid to the proprietor of the land in which the coal mines are situate as his share of the said profits. It was thus held by the Privy Council as far back as in the year 1910, that the Act did not seek to tax any individual, but had reference to the property which included the royalty paid in respect of the land in which the coal mines were situate. In the case of (10) Bengal Coal Company Limited V. Sri Janardan Kishore Lal Singh Deo and another [65 Indian Appeals 354(361)], Sir George Rankin speaking for the Board held on true constructions of Sections 5 and 6 of the Act, that those Sections; 'together with the preamble and other sections' were to the effect that the cess is levied on the immovable property, and that the immovable property is liable to pay it. It is assessed differently as regards lands and mines-in the case of lands it is assessed on the annual value and in the case of mines on the annual value or net profits. The JUDGMENT : of the Board delivered by Mr. It is assessed differently as regards lands and mines-in the case of lands it is assessed on the annual value and in the case of mines on the annual value or net profits. The JUDGMENT : of the Board delivered by Mr. Ameer All in Maharajah Manindra Chandra Nandi V. Secretary of State for India in Council has been referred to, but their Lordships are unable to find that it casts any doubt upon the character of the cess as one imposed upon the immovable property by the plain terms of the Act.'' 14. In the year 1936 some changes were introduced in the Act. All the same, when the Act in its amended form in 1936 came to be considered by a Bench of this Court in (11) Kamakshye Narain Singh V. Arjun (I. L. R. 24 Patna 551) the Court noticed various changes brought about by the amendment of 1936. By Section 5A the Local Government was authorised by a notification to declare that any coal mine or coal quarry shall be notified mine for the purposes of the Act. By Section 6A the local cess was to be assessed on the annual despatches of coal and on the annual net profits of the notified mines in accordance with the provision a of Section 6B. Section 6B provided for the determination of the rate of cess on notified mines and in the proviso it was declared that the rates at which the local cess should be levied on the annual despatches of coal on the annual despatches of notified mines in the district of Hazaribagh, shall be such rates are calculated to produce in each year as nearly as possible on Rs. 1,75,000/- the mine in that case was situated iii the district of Hazaribagh. By Section 72(1) the Collector of the District was directed to cause a notice to be served upon the owner, chief agent, manager or occupier of a notified mine in form in Schedule EE. 1,75,000/- the mine in that case was situated iii the district of Hazaribagh. By Section 72(1) the Collector of the District was directed to cause a notice to be served upon the owner, chief agent, manager or occupier of a notified mine in form in Schedule EE. On noticing these changes Manohur Lal, J., as he then was, speaking for the Bench held at page 559 :- “...But I am unable to hold that the amendment of the Cess Act has made any difference whatsoever to the application of the principles enunciated in Manindra Chandra Nandi's case." Section 5 of the Act has remained uncharged throughout since the year 1880 and as I have already noticed above that in the charging Section it expressly imposes a tax on land. Can it then be said that by the amendment of the Act by the Ordinance, the nature of the cess to be levied has undergone a change in its character from a tax on land to that of a tax on income? I fail to see any justification in upholding the contention that the Ordinance has so metamorphosed the original Act that the charging section although remaining the same, the Ordinance is e colourable piece of legislation as imposing a tax on income. Mr. Singh repeatedly drew out attention to Section 6 in its amended form and submitted that Section 6 laid down that ‘the local cess shall, be assessed on the annual value of lands and until provision to the contrary is made by the Parliament, on the royalty of mines and quarries (a) in the case of royalty, the rate will be determined by Government from time to time but it will not exceed the amount of royalty'. The changes brought about in Section 72 and 72A of the Act by the Ordinance were also repeatedly drawn to out notice in ORDER :to emphasise that with the commencement of the Act in any district Bud thereafter the owner, chief agent, manager, or occupier of every mine or quarry and other immovable properties etc. shall file a return or returns in the prescribed form before the Collector within such time as may be prescribed, the Collector, of course, being invested with the power under Sun-section (1) of Section 72A to extend the time for filing any return. shall file a return or returns in the prescribed form before the Collector within such time as may be prescribed, the Collector, of course, being invested with the power under Sun-section (1) of Section 72A to extend the time for filing any return. Section 72A(1) in its amended form lays down that any owner, chief agent, manager or occupier, who without sufficient cause being shown to the satisfaction of the Collector omits or refuses to lodge the required return in the office of the Collector within the time prescribed or extended, shall be liable to pay a fine, which may extend to Rs. 50/- for every day after expiration of such time or extended time until such return is furnished or until the royalty may be otherwise ascertained and determined by the Collector as provided in the Sections following. These provisions merely prescribe the mode of assessment. They do not determine the character of the tax as such. The consensus of judicial opinion is the effect that even where a tax is being imposed on land and buildings, the annual value may be the basis of assessment of the tax. Merely because the annual value may be the basis of assessment of income tax or the basis of assessment of a tax on capital or may be the basis of assessment of rates such as municipal rates in England, which are neither taxes on Income nor taxes on property but a personal charge on the occupier, it is clearly impossible to say that the employment of annual value as a measure of the impugned tax is indicative of the fact that it is a tax on income and not on land end buildings. The essential character or the tax in all cases has to be discovered de hors the mere machinery by which it is assessed or the mode of quantification of the tax to be levied. Broomfield, J., has observed in a Full Bench decision of the Bombay High Court in the case of (12) Sir Byramjee Jeejeebhoy v. Province of Bombay and others (A. I. R. 1940 Bombay 65) as follows:- “We have to discover what is the “essential character" of the tax, what it is "in pith and substance", apart from the mere machinery by which it is assessed and we are to look mainly at the charging sections of the Act for this purpose. But neither in the charging sections nor in any other part can I find any clear evidence that it is intended to be, or is in effect, a tax upon income....” This was said in relation to the Bombay Finance Act 2 of 1932. On a construction of Section 22 of that Act it was held that it was not ultra vires the Provincial Legislature to ORDER :the Municipal Commissioner to collect the urban Immovable property tax because a power to impose the tax necessarily implies power to collect the same. The word “levy" In Section 24 of that Act was construed as meaning "taking necessary steps to collect." The same principle has been followed by the Federal Court in the case of Batta Ram (supra). It is worthwhile in this connection to refer to a decision of the Constitution Bench or the Supreme Court in (13) Ajoy Kumar Mukherjee V. Local Board of Barpete (A. I. R. 1965 Supreme Court 1561). In that case the provision of Section 62 of the Assam Local Self Government Act 25 of 1953 fen to be considered by the Supreme Court. Section 62(2) was the charging provision in the taxing statute which is in the following terms:- “On the Issue of an older as in Sub-section (1); the Board at a meeting may grant within the local limits of its jurisdiction a licence for the use of any land as a market and impose an annual tax thereon and such conditions as prescribed by rules." Section 62(1) of that Act clearly laid down that the local board may ORDER :that no land shall be used as a market otherwise than under a licence, to be granted by the board whereas by Sub-section (3) of Section 62 or the said Act it has been provided that when it has been determined that a tax shall be imposed under Section 62(2) of the Act the local board shall make an ORDER :that the owner of any land used as a market specified in the ORDER :shall take out a licence for the purpose. Such ORDER :shall specify the tax not exceeding such amount as may be prescribed by rule which shall be charged for the financial year. Such ORDER :shall specify the tax not exceeding such amount as may be prescribed by rule which shall be charged for the financial year. The validity of these provisions was challenged before the Supreme Court and while overruling this it was held that the three Legislative Lists have to be interpreted in their widest amplitude and, therefore if a tax can reasonably be held to be a tax on land, it will come within Entry 49. List II. Further it is equally well settled that tax on land may be based on the annual value of the land and wou1d sun be a fee on the land and would not be beyond the competence of the State Legislature on the ground that it is a tax on income. It was further held that the use to which the land was out could be taken Into account in imposing tax on it within the meaning of Entry 49 List II and the power or the local board under Section 62 to impose tax on land used as market arises on its passing a resolution that no land shall be used as a market. On a consideration of the scheme or Section 62 of the Assam Local Self Government Act, It was held that the tax provided therein was a tax on land though its incidence depended upon the use of land as a market and thus the tax being on land was held to be clearly within the competence of the State Legislature under Entry 49 of List II. 15. This being the well settled princio1e noon which one has to judge the truth and substance of the nature of the tax sought to be imposed, I think It worthwhile to refer to a decision of the Supreme Court in the case of (14) H. R. S. Murthy V. Collector of Chittoor & another (1964 Supreme Court Reports 666 (Vol. 6), which in my view has solved many of the problems arising at the Bali in the instant cases. In Murthy's case (supra), the Supreme Court was seized with the truth and substance of the tax sought to he imposed under Sections 78 and 79 of the Madras District Boards Act (Mad. Act. XIV of 1920), Sections 78 and 79 of that Act read as follows:- "78. In Murthy's case (supra), the Supreme Court was seized with the truth and substance of the tax sought to he imposed under Sections 78 and 79 of the Madras District Boards Act (Mad. Act. XIV of 1920), Sections 78 and 79 of that Act read as follows:- "78. The land-cess shall be levied on the annual rent value of all occupied lands on whatever tenure held and shall consist of a tax of two annas in the rupee of the annual rent value of all such lands in the district. "79. The annual tent value shall, for the purposes of Section 78, be calculated in the following manner:- (i) In the case of lands held direct from Government on ryotwari tenure or on lease or licence, the assessment, lease amount, royalty or other sum payable to Government for the lands, together with any water-rate which may be payable for their irrigation, shall be taken to be the annual rent value. (ii) In the case of inam lands or lands held wholly or partially free from assessment, the fun assessment which such lands would bear if they were not inam, together with any water-rate which may he payable for their irrigation, shall be taken to be the annual rent value and such fun assessment end water-rate shall be determined by the district collector under the general ORDER :s of the Board of Revenue. (iii) In the case of lands held on any other tenure, the annual rent payable to the landholder, sub-landholder or any other intermediate land-holder holding on an under tenure created, continued or recongnized by a landholder of sub-landholder, as the case may be, by his tenants, together with any water-rate which may be payable for their irrigation, shall be taken to the annual rent value; and where such lands are occupied by the owner himself or by any person holding the same from him free of rent or at a favourable rent; the annual rent value shall be calculated according to the rates of rent usually paid by occupancy ryot for ryoti lands in the neighbourhood with similar advantages, together with any water-rate which may be payable fop the irrigation of the lands so occupied. (iv) In the case of lands, the assessment of rent of which is paid in kind, the annual rent value shall be calculated according to the rates of rent established or paid paid neighbhouring lands of a similar description and quality, together with any water-rate which may be payable for the irrigation of the lands first mentioned, or if such method of calculation is in the opinion of the Board of Revenue, impracticable in any particular case, according to any method which the Board of Revenue may approve for that case: Provided that, where any landholder sub-landholder bas obtained under the provisions of Sections 30(iii) and 33 of the Madras Estates Land Act, 1908 a decree empowering him to increase his rent in consequence of any additional payment by way of water-rate made by him to Government, the annual rent value shall be the balance remaining after deducting such Increase of runt up to the amount of the water-rate from the sum ascertained as aforesaid." These provisions were attacked on the ground of legislative competence of the State Legislature. The particular points of attack made on these statutory provisions were (1) that it encroached upon the field assigned exclusively to the Union parliament under entry 54 of List I which deals with regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by law made by parliament to be expedient in the public interest and (2) that in any event the impugned provisions of the Madras Act were seeking to impose taxes on mineral rights falling within Entry 50 of the State List which deal with taxes on mineral rights subject to any limitations imposed by parliament by law relating to mineral development. Both these grounds of attack were repelled. In so far as the impugned provisions were attacked on the ground of encroaching upon the field assigned to the Union parliament under Entry 54 of List I, it was held that the declaration made by the parliament under Section 2 of the Mines and Mineral (Regulation & Development) Act (Act 67 of 1957) was to the effect that it was expedient in the public interest that the Union should take under its control the regulation of mines and development of mineral to the extent provided in the subsequent provisions of the Act. Having noticed that provision the Supreme Court held that Sections 78 and 79 of the Madras Act bad nothing to do and had no concern with the development of mines and minerals or other regulation. There was no connection between the regulation and development of mines and minerals dealt with in the Central Acts (Act 53 of 1948 and Act 67 of 1957), and the levy and collection of land cess for which provision has been made by Sections 78 and 79 of the Act. There was, therefore, no scope, at all, for the argument that there was anything in common in the Central Act and Madras Act in question. While over-ruling the second ground of attack, namely, that the impugned provisions of the Madras Act were seeking to tax mineral fights In respect of royalty imposed by the parliament by the two Central Act, the Supreme Court expressed its inability to accept that argument and in that connection it was held at page 676:- "When a question arised as to the precise head of legislative power under which a taxing statute has been passed, the subject for enquiry is what in truth and substance is the nature of the tax. No doubt; in a sense, but in a very remote sense. It has relationship to mining as also to the mineral won from the mine under a contract by which royalty is payable on the quantity of mineral extracted. But that, does not stamp it as a tax on either the extraction of the mineral or on the mineral right"......" In the context of Sections 78 and 79 and the scheme of those provisions it is clear that the land cess is in truth a "tax" on lands "within Entry 49 of the State list." 16. Section 78 of the Madras Act was further considered as levy on the occupied land on what ever tenure held and the basis of the levy was the annual rent value; whereas Section 79 of the Madras Act was considered for providing for the manner in which the annual rent value was to be determined. It was further held at page 667 of the report that "the position then is that the rent which a tenant might be expected to pay for the property is in the case of lease-hold interest, treated as the statutory annual rent value". It was further held at page 667 of the report that "the position then is that the rent which a tenant might be expected to pay for the property is in the case of lease-hold interest, treated as the statutory annual rent value". it is, therefore not possible to accept the contention, that the fact that the lessee or licensee pays a royalty on the mineral won which is in excess of what he would pay if his right over the land extended only to the mere use of the surface land places it in a category different from other types where the lessee uses the surface of the land alone. In each case the rent which a lessee or licensee actually pays for the land being the test, it is manifest that the land-cess is nothing else except a land tax." As I have already held above that the provision of Section 5 which remained unaltered throughout read along with those of Section 6 as amended by the impugned Ordinance merely seek to impose and levy cess on lessee's land and the remaining provisions of Section 6 as also those of Sections 72, 72A and 75 similarly provide for the machinery and the mode of assessment of such cess. That cannot change the truth and substance of the character of the land tax which the charging Section in unequivocal terms has made the cess payable in respect of all immovable property situate within the area concerned to be. 17. In the instant cases, there is yet another aspect of the matter which was canvassed at the Bar, and therefore, deserves to be noticed. It was argued, rather vehemently, that the tax on lands including mines and minerals was measured with reference to the amount of royalty paid. In effect and substance, therefore, the subject of object of the tax was the lessee; who had not even liberty to pass on even a fraction of the impost to the lessor to whom the lessee was liable to pay the royalty also. I have already partly met with this argument with reference of different passages from Halsbury's laws of England, Third Edition, volumes 23 and 20; which were cited in support of this contention by MR. B. P. Singh, learned counsel for some of the petitioners. I have already partly met with this argument with reference of different passages from Halsbury's laws of England, Third Edition, volumes 23 and 20; which were cited in support of this contention by MR. B. P. Singh, learned counsel for some of the petitioners. Apart from that what I emphasise is that tax on lands which of course Includes mines and minerals refers to the amount or royalty only as a measure for quantification of the liability to be fastened on the occupier of the mines or quarries in question. It is irrespective of whether the lessee, in fact is deriving any profit or gain from the property. The tax is measured by the value of the land and not the income or profit derived by the lessee. It is manifest therefore, that such a tax cannot be treated as a tax on income specially bearing in mind the point that the income tax is not a collection of tax from different kinds of properties, but the annual tax on the total income of assessee taken together. Whatever changes in the mode of levy have been brought about under the substituted Sections 72, 72A and 75 they are, and I say so at the cost of repetition, merely for the purposes of facilitating the determination of the quantum or measure of cess on the immovable property which is the subject matter of tax under the charging Section. These changes brought about in. the machinery of levying Section have no bearing on the compository taxes so to say. 18. For, in any event it cannot be denied, keeping the provisions of the Act and the Ordinance as a whole in view that whatever cess is to be collected is for the purposes of payment to the district fund of the district at such rate as may be determined by the State Government from time to time subject to maximum of twenty percent and the remaining amount to be deposited in the consolidated fund of the State Government for the construction and maintenance and other works of public utility. 19. I am of the view, therefore, that the Act as amended by the impugned Ordinance is not seeking to tax any income at all, not even incidental, encroaching upon the subject matter covered by Entry 82 of List I (Seventh Schedule.) 20. In the alternative it was argued by Mr. 19. I am of the view, therefore, that the Act as amended by the impugned Ordinance is not seeking to tax any income at all, not even incidental, encroaching upon the subject matter covered by Entry 82 of List I (Seventh Schedule.) 20. In the alternative it was argued by Mr. Singh that if it be contended by the respondents that the Ordinance in question was not sustainable as a piece of legislation referable to Entry 49 of List II, the amending Ordinance can be sustainable under Entry 82 of List I, and if that be so it was contended that Entry 50 of List II was of no avail because in substance the Ordinance was not imposing tax on mineral rights but tax on person, and consequently under the Central Act 67 of 1957, already referred to, the power of imposing tax on mineral rights has been circumscribed. Introduction of tax of this character was infringing upon the scheme of the Central Act and is, therefore, ultra vires to that extent. It was further argued that in so far as the Ordinance purported to rating the property which was being worked as mines; the State Legislature had been denuded of its power to impose any tax on such property on account of nationalisation of the coal mines, and the property being the property of the Union Government the State Legislature could not transgress limits imposed by Article 246 of the Constitution. In reality this submission of Mr. Singh has two distinct aspects of the matter. In the first place, the contention is in truth and substance it was a piece of legislation falling under Entry 50 of List II in respect of a subject covered by the Central Act and to that extent the State Legislature has lost its competence to legislate in that field. The other aspect of the matter canvassed is that in, any event after the nationalisation of the coal mines, no coal mine should be subjected to a tax in the guise of tax for it would be seeking to tax on Union property which could not have been done under Article 285 of the Constitution. Regarding the first aspect of the matter I do not propose to detain myself having already noticed and relied upon the decision of the Supreme Court in Murthy's case (supra). Regarding the first aspect of the matter I do not propose to detain myself having already noticed and relied upon the decision of the Supreme Court in Murthy's case (supra). In my view the provisions of Sections 78 and 79 of the Madras Act in that case arc in pari materia with the provisions of Sections 5 and 6 of the Act as amended by the impugned Ordinance. It is, therefore, too late in the day to suggest that the Imposition of cess by value of the statutory provisions with which we are concerned the instant cases could be attacked on the ground that it was not protected by Entry 49 of List II. I have no hesitation therefore while following the decision of the Supreme Court in Murthy's case in holding that the impugned Ordinance neither seeks to tax any income nor does it traverse any forbidden field. 21. In so far as the argument with regard to violation of Article 285 of the Constitution is concerned, the argument although ingenious is to my mind not sound. Article 285 (1) exempts the property of the Union from State taxation Admittedly, the proprietary interest in the mines is vested in the State Government by virtue of the provisions of the Bihar Land Reforms Act and the lessee's interest is vested in the Central Coal Field Limited which is a Company incorporated under the Companies Act. A reference to Section 5 of the Coal Mines (Nationalisation) Act, 1973 (26 of 1973) is necessary. Section 5 of that Act, reads thus:- “5. (1) Notwithstanding anything contained in Sections 3 and 4, the Central Government' may, if it is satisfied that a Government company is willing to comply or has complied; with such terms and conditions as that Government may think fit to impose, direct, by an ORDER :in writing, that the right, title and interest of an owner in relation to a coal mine referred to in Section 3, shall; Instead of continuing to vest in the Central Government vest in the Government company either of the date of publication of the direction or on such earlier or later date (not being a date earlier than the appointed day), as may be specified in the direction. (2) Where the light, title and interest of an owner in relation to a coal mine vest in a Government company under Sub-section (1), the Government company shall, on and from the date of such vesting, be deemed to have become the lessee in relation to such coal mine as if a mining leased in relation to the coal mine bad been granted to the Government company and the period of such lease shall be the, entire period for which such lease could have been granted under the Mineral Concession Rules; and all the rights and liabilities of the Central Government in relation to such coal mine shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively; of the Government company. (3) The provisions of Subsection (2) of Section 4 shall apply to a lease which vested in a Government company as they apply to a lease vested in the Central Government and references therein to the “Central Government shall be construed as references to the Government company". It will thus be seen that by virtue of Section 5(3) of Act 26 of 1973, the provisions of Section 4(2) thereof have been made to apply to a lease which vests in a Government company as they apply to a lease vested in the Central Government and references in Section 4(2) to the ''Central Government" shall be construed as reference to the Government company. Section 4(2) of the Act to which a reference has been made in Section 5 (3) says that on the expiry of the term of any lease, referred to in Sub-section (1), such lease shall, if so desired by the Central Government, be renewed, on the same terms and conditions on which the lease was held immediately before the appointed day, by the lessor. Thus what had originally vested under Section 3(1) of Act 26 of 1973, namely, the right, title and interest of the owners in relation to the coal mines specified, did vest absolutely In the Central Government free from all in-cumbrances, for by virtue of Section 5(3) it made applicable to the vesting of such right, title and interest in relation to the coal mines in a Government company. A Government company cannot in my view be equated with the Union of India, nor for the matter of that do I feel persuaded to hold that the property of a Government company is coterminous with the property of the Union. There can thus be no question of any violation of Article 285(1) of the Constitution by the impugned Ordinance. 22. Before parting with the batch of cases represented by Mr. B. P. Singh, I may also notice the submissions made by Mr. Joshi intervening on behalf of the Tata Engineering & Locomotive Company Limited and supporting the stand of Mr. Singh. We have accorded permission to Mr. Joshi to intervene as the Company which he was representing had already filed a writ application (C. W. J. C. no. 23 of 1977) which is pending disposal by this Court in which one of the points inter alia is with regard to the vires of the impugned Ordinance. While adopting in toto the arguments advanced by Mr. Singh, Mr. Joshi merely supplemented the submissions with reference to a decision of the Mysore High Court In the case of (15) M/s Laxminarayana Mining Co. Bangalore and another v. Taluk Development Board and another (A.I.R. 1972 Mysore 299). In that case it was held that Sections 143 and 144 of the Mysore Village Panchayats and Local Boards Act, 1959, imposing licence fee on the mining manganese or iron ore was ultra vires in so far as it imposed a tax on mineral developments, since the State legislative power under Entries 23 and 50 of List II had ceased after the declaration of Section 2 of the Central Act 67 of 1957. It was also held that the State Legislature lost their powers under Entry 50 of List II and the provisions of the Central Act 67 of 1957 and particularly Section 25 of that Act supported this conclusion. This decision in my view is of no avail to the petitioners. It was also held that the State Legislature lost their powers under Entry 50 of List II and the provisions of the Central Act 67 of 1957 and particularly Section 25 of that Act supported this conclusion. This decision in my view is of no avail to the petitioners. As I have already indicated above, if we take the Act and the impugned Ordinance to be an exercise of legislative power of the State in the fields assigned to it under entries 23 and 50 of List II or Entry 54 of List I then certainly the power of the State Legislature having been circumscribed by a declaration made by the Union parliament; the State Legislature had lost its power to legislate in this particular field. But, as I have already held above, the impugned Ordinance as amending the Act is fully protected by Entry 49 of List II and does not fall under Entry 54 of List I or under Entry 50 of List II. In this connection it is pertinent to point out that "mines and minerals" are found in land and a power to legislate in respect of land within Entry 48 List II may carry the power to Legislate on mines and minerals, but the subject matter of mines and minerals is dealt with in various Entries of Lists I and II. Entry 54 of List I deals with regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by parliament by law to be expedient in the public interest. Entry 55 of that Entry deals with regulation of labour and safety in mines and oilfields. Entry 23 of List II deals with regulation of mines and mineral development subject to the provision of List I with respect to regulation and development under the control and the Union; and Entry 50 of List II deals with taxes on mineral rights subject to any limitation imposed by parliament by law relating to mineral development. Entry 23 of List II deals with regulation of mines and mineral development subject to the provision of List I with respect to regulation and development under the control and the Union; and Entry 50 of List II deals with taxes on mineral rights subject to any limitation imposed by parliament by law relating to mineral development. That is what the Supreme Court has laid down in (16) Baijnath v. State of Bihar (A.I.R. 1970 Supreme Court 1336) following its earlier decisions in the cases reported in A.I.R. 1961 S.C. 459 and A.I.R. 1964 S.C. 1284, if; therefore; the State Legislature is either acting or purporting to act under entry 50 of List II then the case of L. M. Co. (Supra) would clearly render such a piece of legislation as being ultra vires on account of the declaration made by the parliament in Section 2 of Act 67 of 1957 in exercise of its power as laid down in Entry 50 of List II. In this connection some of the decisions of different High Courts need to be noticed specially in view of the principles laid down by the Supreme Court in Murthy's case (Supra). For instance in the case of (17) Jadeja Habbubha v. The State of Bombay (A.I.R. 1959 Bombay 43), cess levied under Section 4 of the Saurashtra Local Development Fund Act (26 of 1956) was held to be within the legislative competence of the State Legislature. In the case of (18) Jews Synagogue Mattncharry v. State of Kerala (1969 I.L.R. Kerala 268 (273), the fees under Section 99(3) of the Kelala Municipal Act 1960 was held to be intra vires. In that case it was argued that since the levy was on the capital value it was ultra vires as the levy should be on the annual value as in the case of 'rate'. Reference to an unreported decision of the Supreme Court in (19) Sudhir Chandra Nawn's case (W. P. nos. 153 to 155 of 1967 (S. C.), the impugned taxing provision was held to be justified as being covered by Entry 49 List II. It was further held by the Supreme Court in that unreported decision that for the purpose of levying tax under Entry 49 List II, the State Legislature may adopt for determining the Incidence of tax the annual or the capital value of the lands and buildings. It was further held by the Supreme Court in that unreported decision that for the purpose of levying tax under Entry 49 List II, the State Legislature may adopt for determining the Incidence of tax the annual or the capital value of the lands and buildings. The Kerala High Court, therefore, negatived the contention that the basis of tax being the capital value of the land, could not be protected under Entry 49 List II, Again in the case of (20) Ramchand Maroti Mandwale v. Malkapur Municipal Council (A.I.R. 1970 Bombay 154), Nagpur Bench of the Bombay High Court held that the imposition of cess under the Maharashtra Education (Cess) Act (Act 27 of 1962) was referable to the exercise of the Legislative power to Entry 49 List II. All these decisions of the various High Courts fortify me in my view that the Act for consideration before us and the impugned Ordinance is referable to and is justified as an exercise of Legislative power of the State Legislature under Entry 49 List II which was the view taken by the Supreme Court in Murthy's case (supra) in relation to the Madras Act. I thus do not find any substance in the contention of Mr. Joshi intervening on behalf of the TELCO and those of Mr. Basudev Prasad intervening on behalf of the Tata Iron & Steel Co. Ltd. whose writ application (C. W. J. C. no. 70 of 1978(R)) also involves one such question of vires of the impugned Ordinance. 23. In C. W. J. C. no. 2273 of 1977, Mr. Basudev Prasad learned counsel for the petitioners did not choose to adopt the arguments advanced by Mr. Balbhadra Prasad Singh or Mr. Joshi. He, however, proceeded to attack the validity of the impugned Ordinance as being violative of the provisions of Articles 14, 19 and 31 of the Part III of the Constitution. It was further submitted by him that the imposition of tax under the Act as amended by the impugned Ordinance in derogation of the petitioners' right of freedom of trade, commerce and intercourse within the meaning of Article 301 and the proviso to Clause (b) of Article 304 required previous sanction of the president for the purposes of validly imposing any restriction. In the absence of the prior sanction of the president the impugned legislation could not be validated. 24. In the absence of the prior sanction of the president the impugned legislation could not be validated. 24. I do not find any substance in these submissions. The contention based on alleged violation of Articles 301 and 304(b) proviso and Article 14 of Part III of the Constitution is misconceived firstly because there is no such plea in the writ petition and such a plea is not a pure question of law; secondly because the impugned tax has no bearing on the freedom of trade etc. under Article 301 of the Constitution and also because the tax is compensatory in its character. As has already been noticed earlier, under Section 9 of the Ordinance, the entire proceeds of the cess realized are to be utilized for the purposes of public works and maintenance of roads and bridges etc. Mr. Lal Narain Sinha learned counsel for the respondents took strong exception to such pleas being raised in course of argument; there being no pleadings to that effect in the petitions. He went to the length of filing a written objection to such a procedure being adopted by Mr. Basudev Prasad. 25. Be that as it may; one thing is very clear which Mr. Prasad also accepted as being the true position in law. The attack of any law on the ground of discrimination and as being violative of equality clause under Article 14 must be based upon proper foundation of facts. The onus undoubtedly is on the petitioners to bring matters on record to show that either persons similarly situate have been differently treated or that persons dissimilarly situated have been similarly treated. No such averment in the petition has to be found. Apart from the fact that there is no breath or whisper in the petition with regard to the alleged infraction of the provisions incorporating the freedom of right in Article 19(1)(g) and Article 31 as also the alleged restrictive nature of the impugned legislation on the freedom of movement of trade and commerce and intercourse, the argument, in my view, is misconceived on a more meritorious ground. It is well settled that the rights under Article 19 as also under Article 31 are fundamental and this consideration has always been borne in mind in determining the constitutional freedom violative of the provisions of these articles. It is well settled that the rights under Article 19 as also under Article 31 are fundamental and this consideration has always been borne in mind in determining the constitutional freedom violative of the provisions of these articles. Once it is shown that prima facie one of the fundamental rights either under Article 19 or Article 31 is violated by law. It is for the State to show how the provisions of the law are reasonable. But one thing, which to my mind is clear is that where there is a question of imposition of tax by a legislature under any appropriate legislative entry, the burden to show the unreasonableness of the tax is purely upon the tax payer. I do not think any exception can be taken against a provision levying a tax lawfully imposed under a taxing statute. This cannot be deemed to be infringement of fundamental rights under Clauses (f) & (g) of Article 19 of the Constitution. In the case of (21) Bhopal Sugar Industries V. Sales Tax Officer, Bhopal (A.I.R. 1967 Supreme Court 549), it was held by the Supreme Court that the Madhya Bharat sales of Motor Spirit Taxation Act (20 of 1953) being a statute which is not beyond the legislative competence of the State of Madhya Pradesh, the levy of tax under that statute cannot be deemed to infringe the fundamental rights guaranteed under Article 19(1)(f) and (g). It was further held that the levy of a tax lawfully imposed under the Statute within the competence of the legislature, cannot be deemed to infringe the fundamental rights guaranteed by Article 19 (1) (f) and (g) of the Constitution. So also in the case of (22) Assistant Commissioner of Urban Land Tax Madras v. Buckingham and Carnatic Co. Ltd. (A.I.R. 1970 Supreme Court 169), Ramaswami, J., speaking for the Supreme Court held (at page 178) that tax on land value and a tax on yielding value both being taxes under Entry 49 List II could not be clubbed together in ORDER :to test the reasonableness of the one or the other for the purpose of Article 19(1). It was further held that as a general rule, it may be said, that so long as a tax retains its character as a tax and is not confiscatory and extortionate the reasonableness of the tax cannot be questioned. It was further held that as a general rule, it may be said, that so long as a tax retains its character as a tax and is not confiscatory and extortionate the reasonableness of the tax cannot be questioned. In the instant case having once held that the cess as imposed under the provisions of the Act as amended by the impugned Ordinance is relatable to tax on land within Entry 49 List II, in the absence of any pleading showing any prima facie encroachment on any fundamental right under Article 19, the argument does not deserve any merit. 26. The attack of violation of Article 31 of the Constitution is more fallacious. Taxation is not deprivation of property and not covered by Article 31(1) of the Constitution. It has been held by the Supreme Court in (23) Laxmanappa Hanumantapa Jamkhandi v. Union of India (A.I.R. 1955 S.C. 3) that there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law. Article 31(1) must be regarded as concerned with deprivation of property otherwise than by imposition or collection of tax. It was laid down by the Supreme Court as far beck as in the year 1951 in (24) Ramjilal v. Income Tax Officer (A.I.R. 1951 S.C. 97) that "Clause (1) of Article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, for otherwise Article 265 becomes wholly redundant. The protection against imposition und collection of taxes save by authority of law directly comes from Article 265 and is not secured by Clause (1) of Article 31". In the case of (24) Raja Jagannath Baksh Singh v. State of Uttar Pradesh (A.I.R. 1962 Supreme Court 1563) it was held by Gajendragadkar, J.; (as he then was) speaking for the Supreme Court as follows:- "(18) The position, however, is different when the challenge is made on the ground that the Act is inconsistent with Article 31. So far as Article 31 (1) is concerned, all that it requires is that no person can be deprived of his property save by authority of law, and as we have just observed, the authority of law postulated by Article 31(1) is obviously the authority of a valid law. So far as Article 31 (1) is concerned, all that it requires is that no person can be deprived of his property save by authority of law, and as we have just observed, the authority of law postulated by Article 31(1) is obviously the authority of a valid law. If the law is not valid because if offends against Article 14 or Article 19 or some other fundamental right guaranteed by part III; then the imposition of tax levied by it cannot be said to meet the requirements of Article 31(1). But if the Act in question is otherwise valid, then the Article 31(1) is compiled with. Article 31(2) would be inapplicable to a taxing statute because the taxing statute does not support to acquire or requisition any property. It may be that the imposition of the tax levied by the statute is excessive and may ultimately lead to the loss of the assessee's property; but even so, it cannot he said that by virtue of the Act, the property had been acquired on requisitioned...." Similarly in the case of (25) Rani Ratnaprova Devi v. The State of Orissa (A.I.R. 1964 Supreme Court 1195) it was held that in the absence of any proper material in support of his challenge to the validity of the Orissa Private Lands of Rulers (Assessment of Rent) Act (13 of 1958), the petitioner must be held to have failed to show that the impugned Act contravenes Article 14 of the Constitution. It was further held in that case that what the Orissa Act had purported to do was to authorise a levy of assessment in respect of mines which till then had been exempted from the said levy. If the Orissa Legislative had imposed a tax in the form of the assessment of the private lands of Rulers, clearly it had not purported either to deprive the Rulers of their property or to acquire or requisition the said property, it was a simple measure authorizing the levy of a tax in respect of agricultural lands and as such it was entirely outside the purview of Article 31. I, therefore, hold that the plea that the impugned Ordinance amending the Act is violative of either Article 14 or Article 19(1)(g) of Article 31 of the Constitution must be rejected. 27. I, therefore, hold that the plea that the impugned Ordinance amending the Act is violative of either Article 14 or Article 19(1)(g) of Article 31 of the Constitution must be rejected. 27. Similarly with regard to the allegations that the impugned taxing statute restricts the freedom of trade, commerce and inter course within Article 301 and Article 304(b) and its proviso, I am constrained to hold that no averment of any sort has been made in the petition to justify any investigation or embarking upon any enquiry in this regard. 28. Mr. Lal Narain Sinha, learned counsel for the respondents also urged in reply to the submissions made by Mr. Basudev Prasad that in so far as his writ petition (C. W. J. C. No. 2273 of 1977) is concerned, petitioner no. 2 was merely made format party and he had not asserted to the petition as to what fundamental right of his has been sought to be infringed by the impugned taxing measure. It is needless for me to go into this question in the view that I have taken of the matter. 29. In so far as C. W. J. C. no. 660 of 1978 is concerned Mr. Katriar adopted parts of the arguments advanced by Mr. Basudev Prasad. For the reasons aforementioned none of the grounds, either with regard to the legislative competence of the State legislature for enacting the impugned Ordinance or with regard to the impugned taxation being violative of the fundamental right or restricting the freedom of trade and commerce can be sustained. The plea of non-traverse in the pleadings in C. W. J. C. no. 660 of 1978 stands at a par with C. W. J. C. no. 2273 of 1977. 30. That then leaves us with the only remaining case (C. W. J. C. no. 1382 of 1977). Mr. Rameshwar Prasad no. 2 learned counsel for the petitioner in this case apart from raising the pleas which have already been negatived by me raises a further plea with regard to the validity of the levy of cess as against the petitioners of all the cases on another ground also. A notification was issued on 5th December 1975 determining the rate of cess payable as thirty percent of the amount of royalty, but this determination was made effective from a back date, namely the 1st of April 1975. A notification was issued on 5th December 1975 determining the rate of cess payable as thirty percent of the amount of royalty, but this determination was made effective from a back date, namely the 1st of April 1975. Another notification was made on 18th August 1976 whereby the percentage of royalty to be payable as cess was raised from thirty percent to forty per cent and the notification dated 18th August 1976 was made effective from 1st April 1976. Both these levies and impositions were challenged on the ground that they were beyond the legislative competence of the subordinate legislative authority in so far as they had purported to give a retrospective or legislative effect to the notification fixing the rate with effect from a back date. With regard to the notification dated 5th December 1975, in my view there is no substance in the submissions of the learned counsel for the petitioner. But I must state at the outset that the submissions with regard to the notification dated 18th August 1976 is well founded in law. It will be seen from the impugned Ordinance that it was promulgated on the 2nd December 1975, but was made to operate retrospectively with effect from 1st April 1975. If the legislature passed a valid piece of legislation on 2nd December 1975, and it was within the legislative competence to pass the Ordinance with retrospective effect from 1st April 1975, it needs no persuation to hold that any determination could be made soon after or contemporaneously with the promulgation of the Ordinance to relate back to the date from which date the Ordinance was made effective, i.e. from 1.4.1975. Also by necessary implication it invests the subordinate legislative authority, namely, the State Government to determine the fate simultaneously or soon after the promulgation of the Ordinance with effect from the date on which the Ordinance is to be introduced. It is well settled that fates cannot be made retrospective unless the language employed in the provision empowers the authority concerned to make the rule or regulation with retrospective effect "either in express terms or by necessary implication". It is well settled that fates cannot be made retrospective unless the language employed in the provision empowers the authority concerned to make the rule or regulation with retrospective effect "either in express terms or by necessary implication". Reference in this connection may be made to the two decisions of the Supreme Court in the cases of (26) the Income Tax Officer v. I.M.G. Ponnoose (A.I.R. 1979 Supreme Court 385) and (27) The Cannaanore Spinning and Weaving Mills Ltd. v. The Collector of Customs & Central Excise, Cochin (A.I.R. 1970 Supreme Court 1950). By necessary implication, therefore, it must be held that the notification dated 5.12.1975 determining the rates with effect from 1.4.1975 the very date from which the Ordinance has been deemed to be made effective, saves the action of the State Government in making the determination of rate from 1.4.1975. 31. With regard, however, to the notification dated 18.8.1976, there is no warrant for any necessary implication being inferred in the State enabling the Subordinate legislative authority to make the rate determined on 18-8-1976 effective from 1-4-1976. The amount of cess fixed fit 40 per cent on the amount of royalty by virtue of the notification dated 18-8-1976 with effect from 1-4-1976 must be struck down as ultravires. The rate at which the petitioners in all the cases shall be charged would be at 30 per cent on the loyalty which was fixed by the notification dated 15-12-1975, and the pate of 40 per cent could be operative only prospectively from 18-8-1976. Since this point is common to all the writ applications, the necessary relief which is being given to the petitioner in C. W. J. C. no. 1382 of 1977 will be available to the petitioner in all the other writ applications in so far as the notification dated 18-8-1976 fixing 40 per cent of the cess on the amount of loyalty is concerned. To make it more cleat and precise; for the period from 1-4-1976 to 17-8-1976 the petitioners of all the cases will be liable to the payment of cess is at the rate of 30 per cent as fixed by the notification dated 5th December 1975. 32. All these writ applications, accordingly, succeed in part only to the extent indicated above. These petitions thus; while being allowed to this limited extent, are substantially dismissed. There will be no ORDER :as to costs. 32. All these writ applications, accordingly, succeed in part only to the extent indicated above. These petitions thus; while being allowed to this limited extent, are substantially dismissed. There will be no ORDER :as to costs. UDAY SINHA, J. - I agree Applications dismissed substantively (being allowed only in parts)