JUDGMENT : P.K. Mohanti, J. - This group of writ petitions have been heard together and will be disposed of by this common judgment as they raise a common question of law relating to the validity of the imposition of cess under the provisions of the Orissa Cess Act, 1962 as amended by the Orissa Cess (Amendment) Act 42 of 1976. 2. The Petitioner-Company carries on mining and other operations incidental to and connected with mining in the oremines and quarries in the districts of Keonjhar, Cuttack, Sundargarh and Sambalpur in the State of Orissa through leases held exclusively for carrying on mining operations and purposes incidental thereto. In pursuance of the terms of the lease-deeds the Petitioner is required to pay royalty for any mineral extracted from the leased area at the rates specified in the Second Schedule to the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the 'Central Act'). The Orissa Legislature passed the Orissa Cess Act of 1962 (hereinafter referred to as the 'Principal Act') which came into force with effect from 1st January, 1963. The Act was enacted with a view to consolidate and amend the law relating to Cess in the State of Orissa. Petitioner was not liable to pay any Cess under the Cess Act, 1880 (Bengal Act No. 9 of 1880), the Angul Laws Regulation, 1936, the Administration of Orissa Order Act, 1948 and the Administration of Mayurbhanj Estate Order, 1949, which were repealed by the Principal Act. Section 4 of the Principal Act is the charging section and it stood as follows: 4.(1) From and after the commencement of this Act all lands shall be liable to the payment of cess determined and payable as hereunder provided: Provided that no such cess shall be payable in respect of lands which were not liable to payment of rent or revenue prior to 1st day of April. 1967 and all lands in respect of which a tax on belding is assessed under the Orissa Municipal Act, 1950. xxx xxx xxx. In October, 1976 a second proviso was added by the Orissa Cess (Amendment) Act 42 of 1976. 1967 and all lands in respect of which a tax on belding is assessed under the Orissa Municipal Act, 1950. xxx xxx xxx. In October, 1976 a second proviso was added by the Orissa Cess (Amendment) Act 42 of 1976. The proviso reads as follows: Provided further that nothing in the preceding proviso shall apply to lands held for carrying on mining operations, Consequential amendments were also made in Sections 6, 7 and 10 and a new section was added as Section 9-B providing for assessment of cess in respect of lands held for carrying on mining operations in the prescribed manner. On 28th November, 1977 the Orissa Cess (Amendment) Ordinance was promulgated by the Government of Orissa, whereby the first proviso of the Principal Act was amended by substituting the words 1st day of April, 1977' in place of the words 1st day of April, 1967'. In Sub-section (2) of Section 5 of the principal Act for the words 'twenty five per centum' the words 'fifty per centum' were substituted. 3. The effect of the amendments was that the lands held for carrying on mining operations were brought within the ambit of the Principal Act. The Orissa Cess Rules were amended by notification No. SRO 414 dated 7-6-1977 prescribing the procedure for assessment of cess on lands held for mining operations. In accordance with the amended rules the Mining Officers issued notices of demand to the Petitioner for the payment of cess. 4. The Petitioner's contention is that by the Central Act enacted under Entry 54 of List I of the Seventh Schedule of the Constitution the entire field for regulation and development of mines and minerals has been covered and the State Government by enacting the Orissa Cess Act and the subsequent amendments thereto under Entry 23 read with Entry 66 of List II is intruding upon the field already covered by the Central Act. The Amendment Act of 1976 is attacked as a piece of colourable legislation since in the guise of legislating for levy of cess on lands, for all practical purposes, the State Legislature has entrenched upon a forbidden field by indirectly seeking to impose a tax on mines and minerals. The Amendment Act of 1976 is attacked as a piece of colourable legislation since in the guise of legislating for levy of cess on lands, for all practical purposes, the State Legislature has entrenched upon a forbidden field by indirectly seeking to impose a tax on mines and minerals. The Petitioner prays for issuance of an appropriate writ declaring the Orissa Cess (Amendment) Act, 1976 and the Orissa Cess (Amendment) Rules, 1977 as ultra vires the Constitution, for a declaration that the increase of cess at the rate of fifty per cent of the annual value of lands determined on the basis of royalty is illegal and void and for quashing the notices of demand issued by the Mining Officers. 5. The stand taken by the State Government is that the case levied under the Principal Act is nothing but a "land tax" relatable to Item 49 of List II of the Seventh Schedule of the Constitution; that the Orissa Cess Act has absolutely nothing to do with mineral development or working of mines and that the fields covered by the Principal Act and the Central Act are separate. The State Government being the owner of the land is competent to enact the legislation for imposition of cess on lands held for carrying on mining operation. 6. In order to fully appreciate the rival contentions which have been raised on behalf of the parties it would be necessary to refer to a few provisions of the Constitution. We may first look at Entry 54 of List I and Entry 23 of List II Since a major part of the controversy relates to these two Entries. Entry 54 of List I reads: 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 23 of List II reads: Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union. 7. Entry 23 of List II reads: Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union. 7. Entry 23 of List II is by its very terms subject to Entry 54 of List I. The effect of subjection is that if the Parliament by law declares it to be expedient in the public interest to assume control of regulation of mines and mineral development the ambit of Entry 23 of List II is cut down to the extent to which regulation of mines and mineral development is taken under the control of the Union. The State Legislature would have no legislative competence to enact legislation in the field which falls within the scope of the declaration made by the Parliament. The Parliament alone would be entitled to legislate in such field. Their Lordships of the Supreme Court have accepted this view as to the interrelation between these two Entries vide The Hingir-rampur Coal Co. Ltd. and Others Vs. The State of Orissa and Others State of Orissa Vs. M.A. Tulloch and Co., and Baijnath Kadio Vs. State of Bihar and Others, . 8. The Central Act came into force on 1-6-1958. It contained the following declaration in Section 2 as contemplated under Entry 54 of List 1: 2. It is hereby declared that it is expedient for the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided. Sections 13 and 18 of the Central Act clearly show that the entire field of regulation of mines and mineral development was covered by the same. Therefore, Entry 23 of List II was completely denuded of its content by reason of the declaration u/s 2 and the enactment of the Central Act. 9. It is contended on behalf of the Petitioner that the Principal Act as amended by Act 42 of 1976 encroaches on matters on which the State Legislature lost its legislative competence by virtue of the declaration made u/s 2 of the Central Act. In other words the Cess Act in so tar as it purports to levy cess in mining areas is ultra vires the State Legislature. 10. In other words the Cess Act in so tar as it purports to levy cess in mining areas is ultra vires the State Legislature. 10. It is a well settled principle that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the Legislature which enacted it, it cannot be held to be invalid because it incidentally encroaches on matters assigned to another Legislature. The Court should determine the pith and substance of the matter and if it finds that essentially the legislation is with respect to a matter which falls within the jurisdiction of the particular legislature, the Court ought not to declare, its invalidity on the ground merely that it incidentally encroaches in some measure upon the jurisdiction of another Legislature entitled to make laws with respect to another matter. In the case of A.S. Krishna Vs. State of Madras Venkatarama Ayyar, J. summed up the principle as follows: ...When a law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provision. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety even though it might incidentally trench on matters which are beyond its competence. 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 disinterred it into parts, examine under what heads of legislation these parts would several fall, and by that process determine what portion thereof are intra vires, and what are not. 11. In course of his argument, Mr. R. Choudhury appearing on behalf of the Petitioner relied on the two decisions of the Supreme Court in The Hingir-rampur Coal Co. Ltd. and Others Vs. The State of Orissa and Others, and State of Orissa Vs. M.A. Tulloch and Co., referred to above. In both the cases the constitutional validity of the Orissa Mining Areas Development Fund Act (27 of 52) had been impugned. Ltd. and Others Vs. The State of Orissa and Others, and State of Orissa Vs. M.A. Tulloch and Co., referred to above. In both the cases the constitutional validity of the Orissa Mining Areas Development Fund Act (27 of 52) had been impugned. In the earlier case the Supreme Court on an examination of the various provisions of the Orissa Act held that the scheme of that Act clearly showed that it had been passed for the purpose of development of mining areas in the State of Orissa and the impugned Act Was relatable to Entry Nos. 23 and 66 of List II of the Seventh Schedule of the Constitution. In the latter case similar view was taken. 12. It was argued by Mr. Choudhury that the pith and substance of the Amending Act of 1976 is nothing but mineral development and mining operation. In our opinion, it is the pith and substance of the Amended Act, which is to be considered and not the pith and substance of the amending Act. Since the amendment becomes a part of the original Statute, both must be construed together as if they constituted one enactment. The amended Statute should be construed as if it had been originally passed in its amended form since the amendment becomes an integral part of the original enactment. 13. On a careful reading of the object, the preamble and the scheme of the Principal Act as amended by Act 42 of 1976 we are not inclined to bold that it is relatable to Entry 23 read with Entry 66 of List II of the Seventh Schedule of the Constitution. The object of the legislation is not the regulation of mines and mineral development like that of the Orissa Mining Areas Development Fund Act of 1952. It aims at Imposing tax on all lands including the lands on which mines and minerals are situate. Tax is directly imposed on land and bears a definite relation to it. It has no connection with raising of ores or mining operations. Tax is on land itself and does not transgress the scope of Entry 49 of List II. The Central Act and the Principal Act (as amended by Act 42 of 1976) cover altogether different fields and one does not entrench upon the other. 14. Mr. It has no connection with raising of ores or mining operations. Tax is on land itself and does not transgress the scope of Entry 49 of List II. The Central Act and the Principal Act (as amended by Act 42 of 1976) cover altogether different fields and one does not entrench upon the other. 14. Mr. Choudhury invited our attention to Sections 5, 6, 7 and 9-E and submitted that pith and substance of the tax is to be found in these provisions. These provisions merely prescribe the mode of assessment of cess and do not determine the essential character of the tax. Section 5 provides that the cess shall be assessed on the annual value of all lands on whatever tenure held calculated in the, manner provided in the Act. Section 7(3) provides that in the case of lands held for carrying on mining operations the annual value shall be the royalty or as the case may be, the dead rent payable by the person carrying on mining operation to the Government. Merely because the cess is assessed on the basis of royalty or dead rent it cannot be said that it is levied on mines and minerals and not on lands. Section 6 specifies the persons by whom cess is payable. It has been argued by Mr. Choudhury that the Act aims at imposing tax on the holder of mining leases. This submission is misconceived because what is taxed is land. Section 6(1)(c) merely fastens the liability on the person in occupation of the land. Section 9-B provides that the cess payable in respect of lands held for carrying on mining operations shall be assessed in the prescribed manner. The Orissa Cess Rules as amended in 1977 provide that assessment of cess u/s 9-B of the Act shall be made at twenty-five per centum of royalty or dead rent whichever is higher and that the cess shall be assessed simultaneously with the royalty or dead rent by the Senior Mining Officer or the Mining' Officer of the area concerned. 15. The provisions of a taxing Statute providing for the mode of assessment of tax cannot control, the charging section. The pith and substance of the tax is to be determined de hore the machinery by which it is assessed or the mode of quantification of the tax to be levied. In the case of Sir Byramjee Jeejeebhoy, Kt. 15. The provisions of a taxing Statute providing for the mode of assessment of tax cannot control, the charging section. The pith and substance of the tax is to be determined de hore the machinery by which it is assessed or the mode of quantification of the tax to be levied. In the case of Sir Byramjee Jeejeebhoy, Kt. Vs. The Province of Bombay a Full Bench of the Bombay High Court observed 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.... In the case of Ralla Ram v. The Province of East Punjab 1948 Federal Court Reporter 207 it was laid down as follows: 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 Anr. v. C.R. Kerr and Anr., the identification of the subject-matter of the tax is only to be found in that section.... In Provincial Treasurer of Alberta and Anr. v. C.B. Kerr and Anr. 1933 A.C. 710, it was held as follows: 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 or necessary. In the case of Ajoy Kumar Mukherjee Vs. Local Board of Barpeta it was laid down as follows: ...Further it is equally well settled that tax on land may be based on the annual value of the land and would still be a tax on land and would not be beyond the competence of the State legislature on the ground that it is a tax on income See Ralla Ram Province v. of East Punjab 1948 Federal Court Reporter 207. It follows, therefore, that the use to which the land is put can be taken into account in imposing a tax on it within the meaning of Entry 49 of List II, for the annual value of land which can certainly be taken into account in imposing a tax for the purpose of this Entry would necessarily depend upon the use to which the land is put. 16. Section 4 of the Principal Act which is the charging section provides in unequivocal language that "From and after the commencement of this Act all lands shall be liable to the payment of cess...." Thus, it expressly imposes a tax on land and not on mines and minerals. In pith and substance the legislation comes under Entry 49 of List II. We see no justification for accepting the contention that the Amending Act of 1976 is a colourable piece of legislation as imposing a tax on mines and minerals in the garb of levying cess on lands. 17. The argument that imposition of cess on land is in reality a tax on mining operations and that the State Legislature has no competence to impose such a tax is not available in view of the decision in the case of H.R.S. Murthy Vs. Collector of Chittoor and Another. In that case the pith and substance of the tax sought to be imposed under Sections 78 and 79 of the Madras District Boards Act (Act XIV of 1920) came up for consideration before their Lordships. It was contended that these provisions encroached upon the field assigned exclusively to the Union Parliament under Entry 54 of List 1 and that in any event those provisions were seeking to impose taxes on mineral rights falling within Entry 50 of the State List which deals with taxes on mineral rights subject to any limitations imposed by Parliament by law relating to mineral development. Repelling the contentions, their Lordships held as follows: ...When a question arises as to the precise head of legislative power under which a taxing Statute has been passed, the subject for enquiry is what in pith 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. 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. It was further held: 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. 18. Bearing all these principles in mind, we hold that the cess levied is a tax on land though fixed with reference to the royalty. The impugned legislation is intra vires and the State Legislature is competent to impose the cess. The contention of Mr. Choudhury that the levy is not one under Entry 49 of List II and that it is under Entry 23 read with Entry 66 of List I cannot be accepted the cess, in our view, is a tax on the land itself and it is quantified on the basis of the quantity of royalty or dead rent. So long as the object of taxation is land, the measure of tax would make no difference to the incidence of tax on such land. The choice of the particular basis or machinery is entirely within the discretion of the Legislature. The machinery, measure or basis of computing or quantifying the extent of liability under the charge on lands is a matter different from the charge itself. The real test is where the incidence of the charge or import falls and not how the liability is calculated. We are fortified in this view by a Division Bench decision of the Patna High Court in the case of Associated Cement Company Ltd. and Ors. v. State of Bihar and Ors. 1979 (27) BLJR 640. 19. The real test is where the incidence of the charge or import falls and not how the liability is calculated. We are fortified in this view by a Division Bench decision of the Patna High Court in the case of Associated Cement Company Ltd. and Ors. v. State of Bihar and Ors. 1979 (27) BLJR 640. 19. It was next contended that the Petitioner-company is not a land holder but It holds the land on lease for carrying on minds operations. It is therefore, not liable to pay land cess. We do not think there is any force in this contention. Section 5 enjoins that cess shall be assessed on the annual value of all lands on whatever tenure held. This necessarily implies that the occupiers of lands are also liable to pay land cess. The Petitioner holds the lands on lease and is, therefore, liable to pay land cess. There is nothing in Entry 49 to indicate that the incidence of tax on lands should necessarily be on the owners and cannot be on the occupiers. 20. Mr. Choudhury also attacked the validity of the Amending Act of 1976 as being violative of the provisions of Article 14 of the Constitution for the fact that the "lands held for carrying on mining operations" were excluded from exemption enjoyed by them like other revenue free lands. There is, however, no pleading enabling the Petitioner to raise such a contention. There is a presumption of the constitutional validity of a legislative enactment. In case any party assails the validity of any statutory provision on the ground that it is violative of Article 14 of the Constitution, it is for that party to plead and produce materials to show discrimination. It was incumbent on the Petitioner to bring matters on record to show that either persons similarly situated have been differently treated or that persons dissimilarly situated have been similarly treated. No such averment has been made in the writ petition. It was merely stated in para 55(0) of the writ petition that the provisions of the impugned Act are violative of Article 14 of the Constitution. In the absence of averments showing discrimination violative of Article 14 of the Constitution, the contention does not deserve consideration. 21. No such averment has been made in the writ petition. It was merely stated in para 55(0) of the writ petition that the provisions of the impugned Act are violative of Article 14 of the Constitution. In the absence of averments showing discrimination violative of Article 14 of the Constitution, the contention does not deserve consideration. 21. Another ground of attack is that the second proviso to Section 4 inserted by the Amending Act of 1976 enlarges the scope and effect of the substantive provision and it is therefore, illegal and void. The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment, a portion which, but for the proviso, would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read lit as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. Vide The Commissioner of Income Tax, Mysore, Travancore-cochin and Coorg, Bangalore Vs. The Indo Mercantile Bank Limited, . A proviso must be considered in relation to the substantive provision to which it is attached. It is dependent on the main provision and cannot be treated as an independent enacting dame. Where there are two provisos to a section of an Act and the latter of the two is repugnant in any way to the first proviso it must prevail for it stands last in the enactment and expresses the last intention of the Legislature. 22. Section 4 which is the charging section provides that cess shall be levied in respect of all type of land. The first proviso exempted certain lands which would otherwise fall within the ambit of the main provision. The second proviso inserted by the Amending Act of 1976 created an exception to the exemption. It embraces a field which is covered by the main provision of the Statute. It leaves the generality of the substantive provision in Sub-section (1) of Section 4 unaffected. Thus, the main part of the section which provides that cess shall be levied on all types of lands remains unaltered. There is, therefore, no merit in the contention that the scope and effect of the substantive provision have been enlarged by introduction of the second proviso. 23. Thus, the main part of the section which provides that cess shall be levied on all types of lands remains unaltered. There is, therefore, no merit in the contention that the scope and effect of the substantive provision have been enlarged by introduction of the second proviso. 23. The result is that the writ applications are dismissed, but without any order as to costs. N.K. Das, J. 24. I agree. Final Result : Dismissed